google, gadgets, and guilt: juror misconduct...
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GOOGLE, GADGETS, AND GUILT: JUROR MISCONDUCT IN THE DIGITAL AGE
THADDEUS HOFFMEISTER*
This Article begins by examining the traditional reasons for juror research. The Article then discusses how the Digital Age has created new rationales for juror research while simultaneously affording jurors greater opportunities to conduct such research. Next, the Article examines how technology has also altered juror-to-juror communications and juror-to-non-juror communications. Part I concludes by analyzing the reasons jurors violate court rules about discussing the case.
In Part II, the Article explores possible steps to limit the negative impact of the Digital Age on juror research and communications. While no single solution or panacea exists for these problems, this Article focuses on several reform measures that could address and possibly reduce the detrimental effects of the Digital Age on jurors. The four remedies discussed in this Article are (1) penalizing jurors, (2) investigating jurors, (3) allowing jurors to ask questions, and (4) improving juror instructions. During the discussion on jury instructions, this Article analyzes two sets of jury instructions to see how well they adhere to the suggested changes proposed by this Article. This is followed by a draft model jury instruction.
* Associate Professor of Law, University of Dayton School of Law. In addition to
researching and writing on issues impacting jurors, the author edits a blog titled
Juries. Prior to teaching, he served in the military, clerked for a federal judge, and
worked on Capitol Hill. He earned his BA (French) from Morgan State University,
JD from Northeastern University School of Law, and LLM from Georgetown
University Law Center. His next article, Investigating Jurors in the Digital Age:
One Click at a Time, will appear in the University of Kansas Law Review. The
author would like to acknowledge Professor Nancy Marder and Dean Margaret
Raymond for their useful and helpful suggestions. In addition, research assistants
David Marviglia, Mike Porter, and Christine Seppeler were invaluable. This
Article also benefitted from thorough editing by the staff of the University of
Colorado Law Review. Of course, any errors or mistakes in this Article are solely
the responsibility of this author.
410 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
As part of the research for this Article, this author conducted one of the first surveys on juror conduct in the Digital Age. The survey was completed by federal judges, prosecutors, and public defenders throughout the country. The Jury Survey served two purposes. First, it was used to determine the extent of the Digital Age’s impact on juror communications and research. Second, it operated as a barometer for the reform proposals suggested by this Article.
INTRODUCTION ......................................................................... 411 I. PROBLEM AREAS ............................................................. 417
A. Research ................................................................... 417 1. Traditional Reasons for Juror Research ............ 419 2. Modern-Day Reasons for Juror Research .......... 422
B. Communications ...................................................... 425 1. Juror-to-Juror Communications ........................ 425 2. Juror-to-Non-juror Communications ................. 428 3. Reasons for Improper Juror
Communications ................................................. 433 II. POSSIBLE SOLUTIONS ..................................................... 436
A. Imposing Penalties .................................................. 436 1. Contempt ............................................................ 437 2. The “Luddite Solution” ....................................... 439 3. Sequestration ..................................................... 441
B. Investigating Jurors ................................................ 442 C. Allowing Questions .................................................. 446 D. Improving Instructions ............................................ 451
1. Component Parts ................................................ 452 2. Sample Instructions ........................................... 458
a. Multnomah County, Oregon ......................... 458 b. Judicial Conference Committee .................... 460 c. Analysis ......................................................... 461
3. Model Instructions ............................................. 465 a. Introduction to Model Instructions ............... 465 b. Text of Model Instructions ............................ 465
CONCLUSION ............................................................................ 468 APPENDIX (JURY SURVEY QUESTIONS) ..................................... 469
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 411
INTRODUCTION
The theory of our [legal] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.1
In the face of ignorance—or curiosity—we “Google.”2
Like most members of society, jurors have been influenced
by the Information or Digital Age.3 In some respects, this
impact has been positive. Today’s jurors, unlike their
predecessors, spend far less idle time at the courthouse. This
time is reduced because mundane tasks such as watching
orientation videos and filling out juror questionnaires can now
be completed online.4 Furthermore, by using email, the court
can send out the jury summons5 and complete certain aspects
of jury selection electronically.6 Another benefit of the Digital
Age includes the creation of court websites that provide jurors
with useful information about jury service.7
However, the ease with which information is disseminated
to and accessed by jurors has drawbacks. Just as jurors use the
Internet to learn directions to the courthouse, they also learn
definitions of important legal terms,8 examine court case files,9
1. Patterson v. Colorado ex rel. Attorney Gen. of Colo., 205 U.S. 454, 462
(1907).
2. Ellen Brickman et al., How Juror Internet Use Has Changed the American
Jury Trial, 1 J. CT. INNOVATION 287, 288 (2008).
3. Id. (“[The Internet] has permeated every aspect of our society, including
the American courtroom.”).
4. Nancy S. Marder, Juries and Technology: Equipping Jurors for the
Twenty-First Century, 66 BROOK. L. REV. 1257, 1271 (2001); MaryAnn Spoto,
Online Juror Surveys Makes Process Easier for Courts, Citizens, STAR-LEDGER,
Feb. 8, 2011, at 16.
5. Marder, supra note 4, at 1272.
6. See State v. Irby, 246 P.3d 796, 800–01 (Wash. 2011) (disallowing jury
selection by email because not all parties were involved).
7. For example, the website for the Court of Common Pleas in Franklin
County, Ohio, allows potential jurors to learn about juror eligibility, dress code,
courthouse security, requests for excuse and postponement, terms of service, and
compensation. Jury, FRANKLIN COUNTY CT. COMMON PLEAS, http://
www.fccourts.org/gen/WebFront.nsf/wp/658B17FFA9A383B0852574FB006DB07A
?opendocument (last visited July 7, 2011).
8. Brian Grow, As Jurors Go Online, U.S. Trials Go Off Track, REUTERS
(Dec. 8, 2010, 3:23 PM), http://www.reuters.com/article/2010/12/08/us-internet-
jurors-idUSTRE6B74Z820101208. In one Florida case, a criminal conviction was
412 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
view photographs of crime scenes,10 and even download
medical descriptions of powerful drugs.11 During one trial, nine
of the twelve sitting jurors conducted some form of independent
research on the Internet.12 In another trial, a juror enlisted a
family member in his quest to unearth online information.13
Advancements in technology also provide jurors new
methods by which to communicate with others.14 In some
instances, jurors have communicated with other jurors,15
witnesses,16 attorneys,17 and defendants18 through social media
websites and email. While sitting in the jury box, jurors have
disseminated their thoughts about the trial and received the
views of others.19 On certain occasions, this information has
overturned because the foreman of the jury looked up the definition of “prudence.”
Tapanes v. State, 43 So. 3d 159, 160 (Fla. Dist. Ct. App. 2010).
9. See Bill Braun, Judge Closes Trial’s Internet Window, TULSA WORLD, May
3, 2010, at A1, available at http://www.tulsaworld.com/news/article.
aspx?subjectid=14&articleid=20100503_14_A1_Inasig174831.
10. Robert Verkaik, Collapse of Two Trials Blamed on Jurors’ Own Online
Research, INDEPENDENT (Aug. 20, 2008), http://www.independent.co.uk/news/uk/
home-news/collapse-of-two-trials-blamed-on-jurorsrsquo-own-online-research-
902892.html (“A judge at Newcastle Crown Court was forced to discharge a jury in
a manslaughter trial yesterday when one of the jurors sent him a Google Earth
map of the alleged crime scene and a detailed list of 37 questions about the
case.”).
11. People v. Wadle, 77 P.3d 764, 770–71 (Colo. App. 2003), aff’d, 97 P.3d 932
(Colo. 2004).
12. John Schwartz, As Jurors Turn to Google and Twitter, Mistrials Are
Popping Up, N.Y. TIMES, Mar. 17, 2009, at A1, available at http://
www.nytimes.com/2009/03/18/us/18juries.html.
13. Commonwealth v. Szakal, LEGAL INTELLIGENCER (Nov. 16, 2009), http://
www.law.com/jsp/pa/PubArticlePA.jsp?id=1202435434751 (paid subscription).
14. See United States v. Fumo, 655 F.3d 288, 298 (3d Cir. 2011).
15. United States v. Siegelman, 640 F.3d 1159, 1181–85 (11th Cir. 2011).
16. See, e.g., Kathleen Kerr, Attorneys: Juror Tried to ‘Friend’ Witness on
Facebook, NEWSDAY (Apr. 7, 2009), http://www.newsday.com/long-island/crime/
attorneys-juror-tried-to-friend-witness-on-facebook-1.1217767; see People v. Rios,
No. 1200/06, 2010 WL 625221, at *2 (N.Y. Sup. Ct. Feb. 23, 2010) (noting that a
juror used Facebook to contact a witness).
17. See, e.g., Thomas Zambito, Judge Declares Mistrial in Rape After Juror’s
Email Ridicules ‘Doubting Thomases’ on the Jury, N.Y. DAILY NEWS (June 9,
2011), http://articles.nydailynews.com/2011-06-09/news/29654981_1_reasonable-
doubt-queens-prosecutors-mistrial.
18. State v. Dellinger, 696 S.E.2d 38, 40–42 (W. Va. 2010) (discussing a juror
who failed to tell the court that she was MySpace friends with the defendant).
19. Christopher Danzig, Mobile Misdeeds: Jurors with Handheld Web Access
Cause Trials to Unravel, INSIDECOUNSEL (June 2009), http://
www.insidecounsel.com/2009/06/01/mobile-misdeeds (“You’ve got jurors who could
literally be sitting in the box running an Internet search while testimony is going
on.”) (quoting an attorney).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 413
been made available online for the general public to see and
comment.20
Although this Article focuses on the American judicial
system, it should be briefly noted that other countries have
experienced similar problems from the widespread use of
technology by jurors.21 In England, a juror conducted an online
poll to determine the guilt or innocence of a defendant.22 In
New Zealand, a judge was so troubled by the possibility of
jurors going online to conduct research that he initially
prevented the media from printing images or names of two
defendants on trial.23 Australia recently amended its Juries Act
to raise the amount of potential fines assessed to jurors who
improperly access the Internet during trial.24
These new methods of juror research and improper
communications, which have led commentators to coin phrases
such as the “Twitter Effect,”25 “Google Mistrials,”26 and
“Internet-Tainted Jurors,”27 are problematic. Such activities
lead to mistrials, which prove quite costly both financially28
and emotionally for those involved in the trial.29 In addition,
20. Deborah G. Spanic, To Tweet or Not to Tweet: Social Media in Wisconsin’s
Courts, ST. B. WIS. (Mar. 5, 2010), http://www.wisbar.org/AM/Template.
cfm?Section=InsideTrack&Template=/CustomSource/InsideTrack/contentDisplay.
cfm&ContentID=90872 (stating that in one trial, a juror tweeted, “I just gave
away TWELVE MILLION DOLLARS of somebody else’s money!”).
21. See Afua Hirsch, Is the Internet Destroying Juries?, GUARDIAN (Jan. 26,
2010), http://www.guardian.co.uk/uk/2010/jan/26/juries-internet-justice.
22. Urmee Khan, Juror Dismissed from a Trial After Using Facebook to Help
Make a Decision, TELEGRAPH (Nov. 24, 2008, 10:01 AM), http://
www.telegraph.co.uk/news/newstopics/lawreports/3510926/Juror-dismissed-from-
a-trial-after-using-Facebook-to-help-make-a-decision.html.
23. See Edward Gay, Judge Restricts Online Reporting of Case, N.Z. HERALD
(Aug. 25, 2008, 5:06 PM), http://www.nzherald.co.nz/nz/news/article.cfm?c_id=
1&objectid=10528866.
24. See Ellen Whinnett, DIY Jury Probe, HERALD SUN (May 9, 2010, 12:00
AM), http://www.heraldsun.com.au/news/diy-jury-probe/story-e6frf7jo-
1225864033798.
25. Ira Winkler, An Appeal to a Jury of Your Twittering Peers, INTERNET
EVOLUTION (Mar. 24, 2009), http://www.internetevolution.com/author.asp?section
_id=515&doc_id=173990.
26. Schwartz, supra note 12.
27. Daniel A. Ross, Juror Abuse of the Internet, N.Y. L.J. (Sept. 8, 2009),
http://www.stroock.com/SiteFiles/Pub828.pdf.
28. See Amanda McGee, Comment, Juror Misconduct in the Twenty-First
Century: The Prevalence of the Internet and Its Effect on American Courtrooms, 30
LOY. L.A. ENT. L. REV. 301, 302 (2009–10).
29. See Annmarie Timmins, Juror Becomes a Defendant, CONCORD MONITOR
(Mar. 26, 2009), http://www.concordmonitor.com/article/juror-becomes-
defendant?SESSf8ff6c533a0d9d4898d6084f82d9a035=ysearch.
414 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
improper juror research and communications call into question
whether today’s jurors can still function in their traditional role
as neutral and impartial fact-finders.
In light of the media attention given to this topic, one
might quickly conclude that improper juror research and
communications are pervasive and growing problems.30
However, beyond anecdotal discussions, there is little academic
research or studies to prove this conclusion.31 The dearth of
legal scholarship may be due in large part to the fact that (1)
the Digital Age is a recent and still evolving era and (2) juror
misconduct is historically an under-examined area of the law.32
The academic articles that address this subject primarily focus
on the benefits of technology and how to harness it to aid in
juror comprehension of the evidence submitted at trial.33 Thus,
there is a possibility that despite the high visibility of a few
cases, no systemic problem exists.
In an attempt to resolve this question, the author
conducted one of the first surveys on jury service in the Digital
30. Brickman et al., supra note 2, at 292 (“Although there are no published
studies of how often jurors use the Internet to access information about cases,
news stories suggest that it is not uncommon.”); Grow, supra note 8. Grow notes:
The data show that since 1999, at least 90 verdicts have been the
subject of challenges because of alleged Internet-related juror
misconduct. More than half of the cases occurred in the last two years.
Judges granted new trials or overturned verdicts in 28 criminal and
civil cases—21 since January 2009. In three-quarters of the cases in
which judges declined to declare mistrials, they nevertheless found
Internet-related misconduct on the part of jurors.
Id.
31. In the future, this author expects this area of law to receive increased
scholarly attention. See generally Timothy J. Fallon, Note, Mistrial in 140
Characters or Less? How the Internet and Social Networking Are Undermining the
American Jury System and What Can Be Done to Fix It, 38 HOFSTRA L. REV. 935
(2010); McGee, supra note 28.
32. See Bennett L. Gershman, Contaminating the Verdict: The Problem of
Juror Misconduct, 50 S.D. L. REV. 322, 323 (2005) (“Although a considerable body
of scholarship on the jury system, jury selection techniques, and jury decision-
making exists, the issue of juror misconduct has not been as closely or
systematically studied.”) (footnotes omitted); Nancy J. King, Juror Delinquency in
Criminal Trials in America, 1796–1996, 94 MICH. L. REV. 2673, 2673 (1996)
(“This article examines two aspects of the jury system that have attracted far less
attention from scholars than from the popular press: avoidance of jury duty by
some citizens, and misconduct while serving by others.”).
33. See Marder, supra note 4, at 1269–74; Gregory J. Morse, Techno-Jury:
Techniques in Verbal and Visual Persuasion, 54 N.Y.L. SCH. L. REV. 241, 247
(2009–10); Paul Zwier & Thomas C. Galligan, Technology and Opening
Statements: A Bridge to the Virtual Trial of the Twenty-First Century?, 67 TENN.
L. REV. 523, 529 (2000).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 415
Age.34 This “Jury Survey” was sent to federal judges,
prosecutors,35 and public defenders to learn how they viewed
the impact of the Digital Age on jurors. The questions in the
Jury Survey focused primarily on juror research but briefly
touched upon juror communications.36 Although conducted
anonymously, the Jury Surveys were written to distinguish
responses from judges and practitioners. Of the responses
received, approximately half were from federal judges, and the
other half were from either federal public defenders or
prosecutors.
The Jury Survey served two purposes. First, it was used to
determine the extent of the Digital Age’s negative impact on
jury service. According to the Jury Survey results, this effect is
statistically significant. Approximately ten percent of the
respondents reported personal knowledge of a juror conducting
Internet research.37 In light of the difficulty of detecting this
type of juror misconduct, this percentage probably under-
represents the actual number of jurors who use the Internet to
research cases.38 The second purpose of the Jury Survey was to
receive feedback from those who regularly interact with jurors
in criminal trials. For the most part, the Jury Survey
respondents agreed with the proposed reforms discussed in this
Article. The one noticeable exception was the topic of allowing
jurors to ask questions of witnesses, which was met with
disapproval by most Jury Survey respondents.
Obviously, a survey of this scope has some limitations.
First, it only examined federal courts, not state courts. Second,
all of the Jury Survey respondents were in some way affiliated
with the federal government, as no actual jurors or private
criminal defense attorneys were surveyed. Third, although
34. For another example of a survey covering similar issues as the Jury
Survey, see NEW MEDIA COMM., CONFERENCE OF COURT PUB. INFO. OFFICERS,
NEW MEDIA AND THE COURTS: THE CURRENT STATUS AND A LOOK AT THE FUTURE,
available at http://www.ccpio.org/documents/newmediaproject/New-Media-and-
the-Courts-Report.pdf.
35. A few prosecutors refused to complete the Jury Survey because it was not
approved by the Department of Justice.
36. See Jury Survey of anonymous respondents [hereinafter Jury Survey].
The Jury Survey is reprinted infra Appendix.
37. Jury Survey, supra note 36.
38. See Ralph Artigliere et al., Reining in Juror Misconduct: Practical
Suggestions for Judges and Lawyers, FLA. B.J., Jan. 2010, at 9–10 (“These
examples represent recent transgressions that were discovered, and probably
represent just the tip of the iceberg of juror behavior.”).
416 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
every federal district was surveyed, the overall number of
responses received was small.39 However, even with these
drawbacks, the Jury Survey provides a good snapshot of
current trends in the American legal system. In addition, it
offers the views of those who are directly confronted with the
problems of improper juror communications and research.
Many of the responses provided by the Jury Survey
respondents are highlighted throughout the Article.
Part I of the Article begins with a discussion of the Digital
Age’s influence on juror research and communications.40 Here,
the Article examines the traditional rationales for juror
research.41 The Article then discusses how the Digital Age has
created new reasons for juror research while simultaneously
affording jurors greater opportunities to conduct such research.
This Section also examines how new technology has altered
juror-to-juror communications and juror-to-non-juror
communications. Part I concludes by analyzing why jurors
violate court rules about discussing the case before
deliberations or outside of the deliberation room.
Part II analyzes possible steps to limit the negative impact
of new technology on juror research and communications.
While no single solution exists for these problems,42 this Part
focuses on several reform measures that could address, and
possibly reduce, the detrimental effects of the Digital Age on
the legal process. The four remedies proposed by this Article
are (1) penalizing jurors, (2) investigating jurors, (3) allowing
jurors to ask questions, and (4) improving juror instructions.
During the discussion on jury instructions, this Part analyzes
two sets of jury instructions to see how well they adhere to the
39. Forty-one individuals responded to the Jury Survey.
40. The Digital Age has also impacted attorneys who investigate jurors
online. For information on that topic, see infra Part II.B; see also Thaddeus
Hoffmeister, Applying Rules of Discovery to Information Uncovered About Jurors,
59 UCLA L. REV. 28 (2011), available at http://www.uclalawreview.org/
wordpress/?p=2735.
41. For the purposes of this Article, “jury research” refers to any effort by a
juror to discover information about the case beyond that which was presented at
trial.
42. Question 7 of the Jury Survey provided a list of potential solutions and
asked respondents to select the most effective. One respondent answered, “[t]here
is no one best method . . . [a] combination is most effective,” while another
indicated that a combination of three distinct solutions was required. Jury
Survey, supra note 36.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 417
suggested changes proposed by this Article. This is followed by
a draft model jury instruction.
I. PROBLEM AREAS
A. Research
Although improper juror communications have raised
numerous concerns in the Digital Age,43 the issue presently
generating the greatest anxiety is juror research.44 While the
underlying concept is not new, the methods by which jurors
conduct research are.45 Since the late 1990s, jurors, rather
than relying solely on the evidence presented at trial, have
increasingly turned to the Internet to obtain information about
the case on which they sit.46
Research by jurors is problematic because their verdict
must be based on only the evidence offered in court.47 Allowing
jurors to decide a case based on outside information “violates a
defendant’s Sixth Amendment rights to an impartial jury, to
confront witnesses against him, and to be present at all critical
stages of his trial.”48 Unlike evidence presented in court,
attorneys cannot cross-examine, question, or object to
information discovered by jurors online. As the Third Circuit
noted in United States v. Resko, “extra-record influences pose a
substantial threat to the fairness of the criminal proceeding
43. See discussion infra Part I.B.
44. See Schwartz, supra note 12 (citing a trial consultant who suggests that
“juror research is a more troublesome issue than sending Twitter messages or
blogging”).
45. One of the first reported cases of juror research is Medler v. State ex rel.
Dunn, 26 Ind. 171, 172 (1866); see also Caleb Stevens, Lure of the Internet Has
Courts Worried About Its Influence on Jurors, MINNEAPOLIS/ST. PAUL BUS. J.
(May 10, 2009, 11:00 PM), http://www.bizjournals.com/twincities/stories/
2009/05/11/focus3.html (“Since the inception of a trial by jury, jurors have had the
temptation of researching cases outside the courtroom against judges’ orders.”).
As a Jury Survey respondent indicated in answering a question regarding
Internet research by jurors, “This is just another aspect of an old problem.” Jury
Survey, supra note 36.
46. See Grow, supra note 8.
47. See Turner v. Louisiana, 379 U.S. 466, 472–73 (1965) (“ ‘[E]vidence
developed’ against a defendant shall come from the witness stand in a public
courtroom where there is full judicial protection of the defendant’s right of
confrontation, of cross-examination, and of counsel.”).
48. United States v. Dyal, No. 3:09-1169-CMC, 2010 WL 2854292, at *12
(D.S.C. July 19, 2010).
418 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
because the extraneous information completely evades the
safeguards of the judicial process.”49
This is not to say that jurors must refrain from relying on
life experiences to interpret the evidence presented by the
parties.50 Rather, jurors are not to make a decision based on
outside or extrinsic evidence51 that lacks proper
authentication.52 For example, a juror in a recent murder trial
in Rhode Island went online to look up the definitions of
“manslaughter,” “murder,” and “self-defense.”53 The definitions
discovered by the juror, however, were derived from California
statutes and case law.54 This juror’s actions ultimately led the
trial judge to declare a mistrial.55
The Digital Age, with its advancements in technology, has
exacerbated the problem because, unlike traditional research,
online research occurs before voir dire,56 during trial,57 and in
the midst of deliberations.58 Furthermore, online research,
which generally does not attract the attention of others, can be
accomplished almost anywhere. Jurors only need Internet
access.59 Some might think that online research is easier to
detect than traditional research because the court can search a
juror’s computer or handheld device. But this presupposes that
49. United States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993). Research also
suggests that extrinsic information can greatly influence the decision-making of
jurors. Neil Vidmar, Case Studies of Pre- and Midtrial Prejudice in Criminal and
Civil Litigation, 26 LAW & HUM. BEHAV. 73, 86 (2002).
50. See Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994) (“[A juror’s]
observation concerning the life of this community is part of the fund of ordinary
experience that jurors may bring to the jury room and may rely upon.”).
51. See Brickman et al., supra note 2, at 289–90 (“Research has demonstrated
that jurors’ exposure to media coverage and other extrinsic information about a
case can be highly influential to their decision-making.”).
52. See Dyal, 2010 WL 2854292, at *12; Ken Strutin, Electronic
Communications During Jury Deliberations, N.Y. L.J., May 19, 2009, at 5 (“The
potential prejudice to the integrity of the process implicates basic fairness
embodied in due process, right to a jury trial, confrontation and cross-
examination.”).
53. Talia Buford, New Juror Policy Accounts for New Technology,
PROVIDENCE J. (May 17, 2009), http://www.projo.com/news/content/TWITTER_
AND_THE_JURY_05-17-09_C7EA4AE_v24.3549604.html.
54. Id.
55. Id.
56. See Russo v. Takata Corp., 774 N.W.2d 441, 444–45 (S.D. 2009).
57. See People v. Carmichael, 891 N.Y.S.2d 574, 574 (App. Div. 2009).
58. See State v. Aguillar, 230 P.3d 358, 359 (Ariz. Ct. App. 2010).
59. See Commonwealth v. McCaster, 710 N.E.2d 605, 606–07 (Mass. App. Ct.
1999).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 419
(1) the court knows to check those items,60 (2) jurors would be
amenable to such a practice, and (3) jurors did not access the
Internet through public or non-personal means. To better
understand and address the modern-day problem of online
research by jurors, it is first necessary to take a step back and
examine why jurors feel the need to conduct any research at
all.
1. Traditional Reasons for Juror Research
Due to the nature of the adversarial system, limitations
are placed on the information received by jurors. First, judges
act as gatekeepers, controlling the flow of information to the
jurors by limiting what evidence they may hear.61 Second,
prospective jurors with pre-existing knowledge of the facts in
dispute, the parties, or witnesses are generally challenged and
dismissed by the attorneys or the judge.62 In choosing today’s
juries, “ignorance is a virtue and knowledge a vice.”63 This lack
of information has led to increased juror curiosity and
confusion. In addition, it has left some jurors feeling ill-
equipped to determine a defendant’s guilt or innocence.64
According to one legal commentator, “There are people who
feel they can’t serve justice if they don’t find answers to certain
questions.”65 These so-called “conscientious jurors” take their
role as fact-finders very seriously and aspire to do a good job.66
60. Paula Hannaford-Agor, Google Mistrials, Twittering Jurors, Juror Blogs,
and Other Technological Hazards, CT. MANAGER, Summer 2009, at 42, 44 (“It is
very difficult to frame intelligible questions for jurors if the questioner does not
fully understand what he or she is asking about or, for that matter, the responses
of individual jurors to those questions.”).
61. See United States v. McKinney, 429 F.2d 1019, 1022–23 (5th Cir. 1970)
(“To the greatest extent possible, all factual [material] must pass through the
judicial sieve, where the fundamental guarantees of procedural law protect the
rights of those accused of crime.”); Brickman et al., supra note 2, at 288 (“In a
sense, though, the very existence of the Internet is antithetical to the idea of a
controlled flow of information.”).
62. Gershman, supra note 32, at 349.
63. Id. Historically, however, this was not the case. For a discussion of how
the Digital Age may resurrect the original notion of a jury in which impartiality
only referred to the absence of conflict, not a complete lack of information about
the parties, witnesses, or facts in dispute, see generally Caren Myers Morrison,
Jury 2.0, 62 HASTINGS L.J. 1579 (2011).
64. See infra text accompanying note 74.
65. Schwartz, supra note 12.
66. See Bridget DiCosmo, Judge Re-enforces Electronic Gadget Ban, HERALD
MAIL, Jan. 22, 2010, at A1 (“Often, the jurors who end up causing problems by
420 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
But they feel unprepared to render a verdict that in certain
instances requires them to decide between life and death.67
Jurors falling into this category often “want to ‘solve’ the case,”
and they think more information might help them.68
The Ohio case of Ryan Widmer demonstrates how far some
jurors will go to ensure that they make the right decision.69 In
that case, the defendant was charged with drowning his
newlywed wife, Sarah, in the couple’s bathroom.70 The defense
claimed that Ryan found Sarah in the bathtub and
immediately called 911 and started to perform CPR.71
However, emergency medical technicians (EMTs), who arrived
on the scene shortly after being called, claimed that Sarah’s
body was dry when they arrived, which supported the
government’s theory that Ryan drowned his wife and then
staged the 911 call.72 A key question in the case was whether a
human body could dry between the time Ryan supposedly
pulled his wife out of the bathtub and the time the EMTs
arrived.73 Several jurors were so concerned about this issue
and possibly convicting an innocent man that, after
deliberations ended on the first day, they went home, bathed,
and then calculated the amount of time it took for their bodies
to air-dry.74
Another cause of juror research is confusion, which stems
from a variety of factors.75 First, some of the more modern
conducting their own research are the most conscientious ones, because they want
all of the facts so they can make an informed decision about the case.”).
67. See Janice Morse, Long Road Ahead in Widmer Case, CINCINNATI
ENQUIRER (May 22, 2009), http://news.cincinnati.com/article/20090522/
NEWS0107/905230364/Long-road-ahead-Widmer-case; see also Gershman, supra
note 32, at 347.
68. See Jury Survey, supra note 36.
69. See Morse, supra note 67.
70. Id.
71. See Dennis Murphy, The Mystery in the Master Bedroom, MSNBC (Sept.
18, 2009) http://www.msnbc.msn.com/id/32860588/ns/dateline_nbc-crime_reports/
t/mystery-master-bedroom.
72. See id.
73. Morse, supra note 67.
74. Id. The actions of the jurors resulted in a new trial for the defendant. His
second trial ended in a hung jury, and his third trial ended in a conviction. Janice
Morse, Jury Finds Ryan Widmer Guilty of Murder, CINCINNATI ENQUIRER (Feb.
15, 2011), http://news.cincinnati.com/apps/pbcs.dll/article?AID=/20110215/
NEWS010702/302150035/&template=artiphone.
75. See Douglas G. Smith, Structural and Functional Aspects of the Jury:
Comparative Analysis and Proposals for Reform, 48 ALA. L. REV. 441, 553–54
(1997).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 421
crimes that jurors must consider, such as violations of the
Racketeer Influenced and Corrupt Organizations Act (RICO)76
or securities fraud, go “well beyond the general knowledge of
the layperson.”77 Thus, jurors become reliant on the attorneys
or the judge to explain the elements and charges.
Unfortunately, both attorneys and judges sometimes fail to
provide adequate explanations.
Second, some jurors are unclear about words and phrases
used at trial that often go undefined by the attorneys or the
judge.78 Jurors have been discovered researching medical or
legal terms like “oppositional defiant disorder”79 and
“distribution.”80 In other instances, jurors have turned to the
Internet to learn the definitions of uncommon words like
“lividity.”81 The problem of juror confusion is compounded by
the fact that many jurisdictions prevent jurors from discussing
the case until deliberations and, even then, only with other
jurors who may be equally as confused.82
Besides being overly conscientious and confused about the
facts at trial, some jurors are just plain curious.83 Like most
people, they want to know why certain issues went
unexamined and why specific witnesses went uncalled.84
Furthermore, jurors are interested in learning about evidence
objected to or deemed inadmissible.85 As one Jury Survey
respondent noted, “They want to know all the things they think
we are keeping from them.”86
76. 18 U.S.C. §§ 1961–68 (2006).
77. See Thaddeus Hoffmeister, The Grand Jury Legal Advisor: Resurrecting
the Grand Jury’s Shield, 98 J. CRIM. L. & CRIMINOLOGY 1171, 1189 (2008).
78. See Jerry Casey, Juries Raise a Digital Ruckus, OREGONIAN (Jan. 13,
2008), http://blog.oregonlive.com/washingtoncounty/2008/01/juries_raise_a_
digital_ruckus.html.
79. Wardlaw v. State, 971 A.2d 331, 334 (Md. Ct. Spec. App. 2009).
80. United States v. Bristol-Mártir, 570 F.3d 29, 37 (1st Cir. 2009).
81. Del Quentin Wilber, With Social Networking, Justice Not So Blind, WASH.
POST, Jan. 9, 2010, at C1.
82. See infra text accompanying notes 121–24.
83. See, e.g., Jeffrey T. Frederick, You, the Jury, and the Internet, BRIEF,
Winter 2010, at 12, 12 (quoting a juror who explained his misconduct by stating,
“Well, I was curious.”).
84. See Strutin, supra note 52 (“More powerful than any rule of courtroom
conduct are human curiosity and the overwhelming need to share our
experiences.”).
85. See Susan J. Silvernail, Internet Surfing Jurors, ALA. ASS’N FOR JUST. J.,
Fall 2008, at 49, 49 (“Judge Vowell says he has observed a change in juror’s [sic]
attitudes about wanting more information about the cases.”).
86. Jury Survey, supra note 36.
422 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
2. Modern-Day Reasons for Juror Research
In addition to the traditional grounds for juror research,
the Digital Age has created new opportunities and reasons for
jurors to seek information outside of the courtroom. First, in
the Digital Age, Internet usage has become increasingly
common and popular.87 As a result, more people have grown
accustomed to and reliant on it.88 In fact, “going online” to find
information has become almost instinctive, something people
do without giving it much thought.89 For many, the customary
preparation for, or follow-up after, meeting a new person,
either professionally or socially, is to research that person by
“Googling” or “Facebooking” him or her.90 This practice does
not necessarily cease because someone is serving as a juror.
When jurors initially see the judge,91 parties,92 attorneys,93 and
witnesses,94 they want to know more about these individuals,
and, to do this, they go online to find information.
Second, the Internet makes research by jurors much easier
to accomplish. According to one state bar journal, “Jurors have
87. For current information on the number of individuals using the Internet,
see Internet Usage Statistics: The Internet Big Picture, INTERNET WORLD STATS,
http://internetworldstats.com/stats.htm (last updated Oct. 6, 2011) (estimating
that 78.3% of the North American population uses the Internet); see also Michael
K. Kiernan & Samuel E. Cooley, Juror Misconduct in the Age of Social
Networking 2 (July 28, 2011) (unpublished presentation), available at
http://www.thefederation.org/documents/18.Juror%20Misconduct%20and%20Soci
al%20Media-Kiernan.pdf.
88. See Nora Lockwood Tooher, Tackling Juror Internet Use, LAWS. USA,
Mar. 24, 2009 (“There’s a whole generation of people for whom twittering is as
natural as breathing.”) (quoting litigation consultant Ken Broda-Bahm).
89. Michelle Lore, Facing Down Facebook: Social Media Use and Juries,
MINN. LAW. (June 14, 2010), http://minnlawyer.com/2010/06/14/facing-down-
facebook-social-media-use-and-juries (“I emphasize [that jurors should not
investigate cases] because I think it’s almost becoming natural to [go to websites
to] satisfy your curiosity and get answers.”) (second alteration in original)
(quoting a judge); see also Ellen Lee, Pew Survey: Half of Us Have Looked Up
People We Know on Internet, S.F. CHRON., Dec. 17, 2007, at E1, available at
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/12/17/BUKETSUFG.DTL
(“About half of the online adult population has looked up themselves or someone
else online.”).
90. See Brickman et al., supra note 2, at 288 (“[M]any people automatically
search the Internet when confronted with a new name, subject, idea or other
stimulus.”).
91. Email Interview with Jake Durling (Nov. 10, 2011).
92. See Russo v. Takata Corp., 774 N.W.2d 441 (S.D. 2009).
93. See Henry Gottlieb, Should You Design Your Firm’s Web Site with Jurors
in Mind?, N.J. L.J., Jan. 2, 2007, at 29.
94. Id.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 423
the capability instantaneously to . . . look up facts and
information during breaks, at home, or even in the jury
room.”95 If a juror has a question about an issue that arose in
court or wants to know more about where the alleged crime
took place, she does not have to physically go to the library or
crime scene.96 Instead, she merely needs to access the Internet
which, compared to other options, is quicker, less onerous, and
less likely to be noticed.97
The ease of obtaining information from the Internet has
also led jurors to more readily seek out facts on their own.98
This in turn has made jurors less deferential to the person
offering information in court, whether she is the judge,
attorney, or witness.99 With the Internet, even a layperson can
be an expert—at least for the moment.100
Another reason for online juror research is the sheer
number of news stories about trials, and the longer shelf-life of
those stories. Today, even routine cases are now reported or
95. Artigliere et al., supra note 38, at 9; see also Eric Sinrod, Jurors: Keep
Your E-fingers to Yourselves, TECHNOLOGIST (Sept. 15, 2009, 9:29 AM),
http://blogs.findlaw.com/technologist/2009/09/jurors-keep-your-e-fingers-to-
yourselves.html (“It is reasonable to expect that the natural curiosity of some
jurors and the ease and habit of Internet research might cause them to let their
fingers do their walking into finding out about their cases outside of the
courtroom.”).
96. Erika Patrick, Comment, Protecting the Defendant’s Right to a Fair Trial
in the Information Age, 15 CAP. DEF. J. 71, 87 (2002) (“Because the Internet is
such a vast resource, the potential exists for jurors to do independent research on
matters of law with more ease and stealth than going to the local law library
would require.”).
97. See Jocelyn Allison, Tweets Let Attorneys Know When Jurors Misbehave,
LAW360 (Oct. 23, 2009, 4:18 PM), http://www.law360.com/topnews/articles/128603
(paid subscription) (“[T]he sheer wealth of data available online makes it easier
for [jurors] to look up arcane terms or dig up dirt on the parties.”).
98. See John G. Browning, When All That Twitters Is Not Told: Dangers of the
Online Juror (Part 3), LITIG. COUNS. AM. (Aug. 2009), http://www.trialcounsel.org/
082909/BROWNING.htm (“As [an Oregon district attorney] puts it, the ease of the
Internet and handheld technology ‘almost invite people to do extrinsic
research . . . .’ ”).
99. Renee Loth, Op-Ed., Mistrial by Google, BOS. GLOBE, Nov. 6, 2009, at A15,
available at http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/
2009/11/06/mistrial_by_google.
100. See Rebecca Porter, Texts and ‘Tweets’ by Jurors, Lawyers Pose Courtroom
Conundrums, TRIAL, Aug. 2009, at 12, 14 (“Some have a compulsion to know and
be viewed as an expert. In the privacy of their own homes at 2 a.m., they do
whatever they want.”) (quoting jury consultant Amy Singer); see also Strutin,
supra note 52 (“Our Internet culture has enlarged the knowledge base of anyone
with a smartphone.”).
424 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
discussed on the Internet.101 Also, unlike in the past,
information on the Internet about the trial or parties does not
necessarily go away just because the case is out of the news
cycle of the traditional media. This was noted by several legal
commentators who wrote that a “year-old article in an out-of-
state publication will show up in an Internet search just as
easily as a current headline from the daily local paper.”102
Finally, some jurors unwittingly conduct research because
the jury instructions are either unclear or outdated. For
example, in Russo v. Takata Corp., a juror named Flynn
received a jury summons that stated, “Do not seek out evidence
regarding this case and do not discuss the case or this
Questionnaire with anyone.”103 Flynn “did not recognize
Takata by name or product line and wondered ‘what they
did.’ ”104 Flynn also wanted to know if Takata had been
involved in any previous lawsuits.105 Thus, he went online to
investigate the company.106
Flynn’s online research never came out during voir dire
because the attorneys handling the case did not directly raise
the topic with Flynn.107 Later, however, during deliberations,
Flynn told another juror that during his Internet research of
Takata he did not find any lawsuits against the company.108
Shortly after reaching a verdict in favor of the defendants,
Flynn’s actions were uncovered, and the trial judge granted the
plaintiff’s motion for a mistrial based on juror misconduct.109
The defendants appealed to the South Dakota Supreme Court,
which affirmed the actions of the trial judge and also stated
that “[i]t may well be that Flynn did not realize that
performing a Google Search on the names of the Defendants
Takata and TK Holdings constituted ‘seek[ing] out evidence.’
”110
101. Brickman et al., supra note 2, at 292 (“Virtually every trial is newsworthy
to someone and can therefore end up on the Internet where jurors can easily find
it.”).
102. Id.
103. Russo v. Takata Corp., 774 N.W.2d 441, 444 (S.D. 2009) (emphasis added).
104. Id.
105. See id. at 446.
106. Id.
107. See id. at 445.
108. Id. at 446.
109. Id. at 447.
110. Id. at 450 n.* (second alteration in original).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 425
Unfortunately, the negative impact of the Digital Age on
jurors is not limited to online juror research. Juror
communications, which will be discussed in greater detail
below, has also become a major area of concern in the Digital
Age.111
B. Communications
For the purposes of this Article, juror communications
occur either among jurors themselves or with outside third
parties. Generally speaking, communications by a juror are not
an issue if they are unrelated to the trial on which the juror
sits.112 But if the communications relate to the trial, problems
can arise. This is because most jurisdictions forbid jurors from
discussing trial evidence with other jurors prior to
deliberations and with non-jurors before reaching a verdict.113
Yet, as with the prohibition on juror research, the restrictions
on juror communications are not always followed.
1. Juror-to-Juror Communications
Traditionally, juror communications with third parties
have raised more concerns than juror communications with
other jurors.114 In fact, some reformers want to allow jurors to
discuss the case among themselves prior to the commencement
of deliberations.115 Currently, at least four states allow jurors
in civil proceedings to discuss the case before the submission of
111. See DiCosmo, supra note 66 (“Society’s increasing dependence on cell
phones, smart phones and social networking sites such as Facebook and Twitter
to stay in contact can pose a problem for court officials when it comes to keeping
jurors from communicating during a case.”).
112. For a twist on this general rule, see Pablo Lopez, Juror E-mails Muddy
Trial, MCCLATCHY (Apr. 16, 2010), http://www.mcclatchydc.com/2010/04/16/
92318/juror-e-mails-muddy-trial.html. This article discusses a California judge
who, upon being selected to serve as a juror, sent emails about his experience to
his fellow jurists. “[L]egal observers say it’s not clear that [Judge] Oppliger did
anything wrong. Jurors are allowed to tell others they are assigned to a trial. But
the judge should have known better than to do something that could raise a
possible objection, they say.” Id.
113. David A. Anderson, Let Jurors Talk: Authorizing Pre-deliberation
Discussion of the Evidence During Trial, 174 MIL. L. REV. 92, 94–95 (2002).
114. Gershman, supra note 32, at 341 (“External influences completely evade
the safeguards of the judicial process, whereas internal violations do not raise the
fear that the jury based its decision on reasons other than the trial evidence.”).
115. See Anderson, supra note 113, at 123–24.
426 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
all evidence.116 Other jurisdictions are considering or
experimenting with the idea for criminal trials.117
Advocates of pre-deliberation discussions argue that they
improve juror comprehension and focus the jury once
deliberations commence.118 In addition, these proponents
believe that it is naïve and unrealistic to think that jurors will
refrain from discussing the trial with anyone until
deliberations.119 “[T]he urge to talk about the experience of jury
duty is a strong one, in part to release the pent-up emotional
pressure inherent in the role of juror.”120 Thus, to those
supporting juror pre-deliberation discussions, it is better that
jurors talk with fellow jurors as opposed to family members or
other improper third parties.
Nevertheless, most jurisdictions prohibit jurors from
talking about the case with other jurors prior to
deliberations.121 This rule is in place in order to (1) prevent
premature judgments, (2) increase flexibility during
deliberations, (3) ensure quality and broad deliberations, (4)
decrease juror stress, and (5) maintain open-mindedness.122 A
strong belief exists, especially among the defense bar in both
civil and criminal matters, that allowing jurors to discuss the
case prior to deliberations puts defendants at a decided
disadvantage, as they have yet to present their evidence.123
Some also fear that discussions prior to deliberations might
116. These states include Arizona, Indiana, Michigan, and North Dakota. See
Jessica L. Bregant, Note, Let’s Give Them Something to Talk About: An Empirical
Evaluation of Predeliberation Discussions, 2009 U. ILL. L. REV. 1213, 1215 & n.19;
Joe Swickard, Michigan Jurors to Get More Leeway Under New Rules, DETROIT
FREE PRESS, June 29, 2011.
117. William J. Caprathe, A Jury Reform Pilot Project: The Michigan
Experience, JUDGES’ J., Winter 2009, at 27, 30–31.
118. THE ARIZ. SUPREME COURT COMM. ON THE MORE EFFECTIVE USE OF
JURIES, JURORS: THE POWER OF 12—PART TWO 8–9 (1998) [hereinafter JURORS:
THE POWER OF 12], available at http://www.azcourts.gov/Portals/15/Jury/
Jury12.pdf.
119. Id.
120. Marcy Strauss, Juror Journalism, 12 YALE L. & POL’Y REV. 389, 408
(1994) (citing jury expert Hans Zeisel).
121. For a discussion of the constitutional implications of banning juror speech,
see id. at 409–14.
122. Anderson, supra note 113, at 95.
123. See Danielle Salisbury, Lawyers, Judges Doubt Jury Reform Will
Fundamentally Change the Way Courts Operate, MLIVE.COM (Aug 13. 2011),
http://www.mlive.com/news/jackson/index.ssf/2011/08/lawyers_judges_doubt_jury_
refo.html.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 427
occur outside the jury room and without the presence of all
twelve jurors.124
Historically, the issue of jurors communicating with one
another before deliberations received little attention because
most courts viewed it as low-level or minor misconduct.125
Although jurors in the past might talk about the case with each
other while leaving the courthouse or discuss it during breaks
in the trial, these discussions were uncommon occurrences and
not considered grave breaches of a juror’s duty.126 Thus, for the
most part, courts were hesitant to declare a mistrial based
solely on jurors discussing the case before deliberations.127 This
was especially true if the juror-to-juror communications did not
occur in the presence of third parties.128
The difference today is the impact of technology. Jurors
can now communicate with each other via email and social
networking sites. For example, in the corruption trial of former
Baltimore Mayor Sheila Dixon, several jurors kept in contact
during and after the trial via Facebook despite admonitions by
the judge not to do so.129
These new forms of juror-to-juror communications greatly
increase the possibility that the interactions and discussions of
jurors will occur outside of the jury room and be made available
to third parties. For example, if conducted in an online forum,
these communications can provide the general public—
including the parties trying the case—access to the inner
workings of the jury room and privileged information, such as
informal vote counts or details of closed-door deliberations. In
the Dixon case, the defense attorneys were able to read the
Facebook posts of the jurors.130 This jeopardized not only jury
124. See Anderson, supra note 113, at 105–06.
125. NANCY S. MARDER, THE JURY PROCESS 114 (2005) (“Most courts turn a
blind eye to the fact that jurors do engage in predeliberation discussions.”).
126. Id.
127. Id.
128. See B. Michael Dann & George Logan III, Jury Reform: The Arizona
Experience, 79 JUDICATURE 280, 283 (1996) (discussing the Supreme Court’s
concern about “division among the federal courts of appeals on the question
whether permitting juror discussions deprives the defendant of the Sixth
Amendment right to an impartial jury”).
129. See Dixon Jurors Ignore Judge, Continue Facebook Posts, WBAL-TV (Jan.
4, 2010, 8:34 AM), http://www.wbaltv.com/r/22117438/detail.html; Dixon Jurors
Must Testify About Facebook, UNITED PRESS INT’L (Dec. 30, 2009, 2:37 PM),
http://www.upi.com/Top_News/US/2009/12/30/Dixon-jurors-must-testify-about-
Facebook/UPI-75451262201840.
130. Brendan Kearney, ‘Friends on Jury,’ DAILY REC., Dec. 3, 2009, at A1.
428 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
deliberations but also the integrity of the legal system itself.131
These new methods of communication also demonstrate how
juror-to-juror communications can easily and unintentionally
become communications to third parties—a much more
problematic issue.
2. Juror-to-Non-juror Communications
While strong arguments exist both for and against
allowing jurors to discuss the trial prior to deliberations with
each other,132 few, if any, would suggest that jurors be allowed
to communicate with third parties about the trial prior to
verdict. Yet, despite this uniform disapproval, this
communication still happens. Of late, the method of juror-to-
third-party contact receiving the greatest amount of attention
is online communication.133
For a variety of reasons, courts want to limit juror
communications to third parties until a verdict is reached.
First, there is concern about maintaining the confidentiality of
jury deliberations.134 Having jurors post information online
about ongoing deliberations or other jurors would hinder the
traditional method of juror decision-making.135 For example,
some jurors may not fully participate or might hold back their
131. See Winkler, supra note 25 (“One of the cases . . . involving Twitter
demonstrates the potential for stock price manipulation if jurors tweet that a
company is losing a big lawsuit. It also facilitates jury manipulation, if lawyers or
other interested parties tweet back or learn how individual jurors are leaning.”).
132. See Anderson, supra note 113, at 121–23.
133. See, e.g., Douglass L. Keene & Rita R. Handrich, Online and Wired for
Justice: Why Jurors Turn to the Internet, JURY EXPERT, Nov. 2009, at 14; Robert
P. MacKenzie III & C. Clayton Bromberg Jr., Jury Misconduct: What Happens
Behind Closed Doors, 62 ALA. L. REV. 623, 638 (2011) (“The fastest developing
area in the realm of juror misconduct involves juror use of e-mail, social
networking sites such as Facebook, and micro-blogging sites such as Twitter
during trial.”).
134. See United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997); Strauss,
supra note 120, at 403 (“This frank and open exchange by jurors, moreover, is
critical to the effectiveness of the decisionmaking process.”); see also John H.
Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. JUDICATURE SOC’Y 166,
170 (1929) (“The jury, and the secrecy of the jury room, are the indispensible
elements in popular justice.”).
135. See Clark v. United States, 289 U.S. 1, 13 (1933) (“Freedom of debate
might be stifled and independence of thought checked if jurors were made to feel
that their arguments and ballots were to be freely published to the world.”).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 429
true feelings during deliberations if they know that their views
will end up on the Internet.136
Second, juror communications to third parties undermine
the notions of due process and a fair trial by providing
attorneys with “inside information” into juror decision-making.
Consider this real-life scenario involving a juror in Michigan.
At the conclusion of the first day of a two-day criminal trial, a
sitting juror posted the following on her Facebook account:
“[A]ctually excited for jury duty tomorrow. It’s gonna be fun to
tell the defendant they’re GUILTY. :P.”137 The Facebook post
was discovered by defense counsel’s son, who was running
Internet searches on the jurors.138 The defense attorney
reported the juror, who was removed prior to the start of the
second day of trial.139
However, it is not difficult to envision a different outcome
had the prosecutor discovered the information. Also, a different
defense attorney may have taken an alternative approach to
this problem. Some attorneys might wait for an unfavorable
verdict to reveal the Facebook post.140 Other attorneys might
not report the Facebook post at all and instead approach the
prosecutor about a mid-trial plea deal or use the information to
revamp their trial strategy.141 As will be discussed in Part II,
136. See Note, Public Disclosures of Jury Deliberations, 96 HARV. L. REV. 886,
889–90 (1983) (“Juror privacy is a prerequisite of free debate, without which the
decisionmaking process would be crippled. The precise value of throwing together
in a jury room a representative cross-section of the community is that a just
consensus is reached through a thoroughgoing exchange of ideas and impressions.
For the process to work according to theory, the participants must feel completely
free to dissect the credibility, motivations, and just deserts of other people.
Sensitive jurors will not engage in such a dialogue without some assurance that it
will never reach a larger audience.”) (footnotes omitted).
137. Jameson Cook, Facebook Post Is Trouble for Juror, MACOMB DAILY (Aug.
28, 2010), http://macombdaily.com/articles/2010/08/28/news/
doc4c79c743c66e8112001724.txt?viewmode=fullstory; see also Associated Press,
Juror Who Blurted out Verdict on Facebook Fined $250, Ordered to Write Essay,
CLEVELAND.COM (Sept. 2, 2010), http://www.cleveland.com/nation/index.ssf/2010/
09/juror_who_blurted_out_verdict.html.
138. Id.
139. Id.
140. Correy Stephenson, Should Lawyers Monitor Jurors Online?,
LEGALNEWS.COM (Dec. 27, 2010), http://www.legalnews.com/macomb/1004089
(noting that a lawyer “expressed concern that some attorneys might fail to
disclose information they learn about a juror—keeping it in ‘their back pocket’ in
case of an unfavorable verdict—and then use the information to seek a new trial”).
141. Richard L. Moskitis, Note, The Constitutional Need for Discovery of Pre-
voir Dire Juror Studies, 49 S. CAL. L. REV. 597, 626 (1976) (“When both the
prosecution and the defense can resist discovery of juror information, it is possible
430 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
information about jurors is rarely subject to the rules of
discovery, and attorneys have a very limited ethical duty to
report it to the court.
The final concern with juror-to-non-juror communication is
that the juror, by communicating with an outside party about
the trial, increases the likelihood that the third party will
influence the juror’s views.142 This is because most
communications involve an exchange of words or ideas. This
concept is reflected in People v. Jamison, where the court
explained why communications between a juror and a third
party are restricted: “[T]he real evil the Court’s instruction not
to discuss the case was designed to avoid . . . [was] the
introduction of an outside influence into the deliberative
process, either through information about the case or another
person’s agreement or disagreement with the juror’s own
statements . . . .”143 Juror online communication to a third
party, however, is somewhat different in that, depending on
how it occurs, the juror may or may not receive feedback. For
example, a Facebook post or a tweet on Twitter does not always
garner a response.
To date, the United States Supreme Court has not
addressed the issue of individuals making online comments
while serving as jurors. However, several state supreme courts
and lower federal courts have taken up the topic. One of the
first to do so was the Supreme Judicial Court of Massachusetts
in Commonwealth v. Guisti. In Guisti, the defendant was
convicted of several serious sex-related crimes.144 During the
defendant’s trial, one of the jurors sent an email to a 900-
person LISTSERV and received at least two responses from
individuals on the LISTSERV.145 The juror’s email read:
“[S]tuck in a 7 day-long Jury Duty rape/assault case . . .
missing important time in the gym, working more hours and
for members of the community to view the result of the trial as dependent upon
which side enjoyed the advantage of juror information rather than upon impartial
jury deliberations . . . .)”.
142. See United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011) (“Not unlike a
juror who speaks with friends or family members about a trial before the verdict
is returned, a juror who comments about a case on the internet or social media
may engender responses that include extraneous information about the case, or
attempts to exercise persuasion and influence.”).
143. People v. Jamison, No. 8042/06, 2009 WL 2568740, at *5 (N.Y. Sup. Ct.
Aug. 18, 2009).
144. Commonwealth v. Guisti, 747 N.E.2d 673, 675 (Mass. 2001).
145. Id. at 678.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 431
getting less pay because of it! Just say he’s guilty and lets [sic]
get on with our lives!”146 Shortly after the verdict, defense
counsel learned of the email and filed a motion for post-verdict
voir dire of the juror in question.147 The trial court denied this
motion, and defense counsel appealed, claiming that the
defendant’s Sixth Amendment right to a fair trial had been
violated.148
In reviewing the defendant’s appeal, the Massachusetts
Supreme Court initially remanded the case to the lower
court.149 However, it did not do so because of the email, which
the court found to be “improper” and in violation of “the judge’s
order not to communicate about the case.”150 Rather, the court
remanded the case because of the responses the juror had
received from those on the LISTSERV.151 The Supreme
Judicial Court wanted the trial court to determine whether
these responses constituted external influences.152 Upon
remand and voir dire of the juror, the trial court ultimately
determined that the responses from the LISTSERV were not
improper external influences.153
Goupil v. Cattell was another case that addressed the issue
of improper online communications by a juror.154 Like Guisti,
Goupil involved a defendant convicted of a serious sex-related
crime.155 However, unlike Guisti, the improper method of juror
communication in Goupil was a blog post, not an email.156
Another distinguishing feature of Goupil is that the trial judge
conducted a post-trial voir dire shortly after becoming aware of
the juror’s blog posts rather than waiting until he was directed
to do so by the appellate court.157
In Goupil, the juror’s first questionable post, made prior to
voir dire, was as follows: “Lucky me, I have Jury Duty! Like my
life doesn’t already have enough civic participation in it, now I
146. Id. (second and third alterations in original).
147. Id.
148. Id. at 678–79.
149. Id. at 681.
150. Id. at 680.
151. Id.
152. See Commonwealth v. Guisti, 867 N.E.2d 740, 742 (Mass. 2007).
153. Id.
154. Goupil v. Cattell, No. 07-cv-58-SM, 2008 WL 544863 (D.N.H. Feb. 26,
2008).
155. Id. at *1.
156. Id.
157. Id. at *3.
432 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
get to listen to the local riff-raff try and convince me of their
innocence.”158 In another post, made after voir dire but prior to
the start of trial, the juror, who happened to be the foreman,
wrote, “After sitting through 2 days of jury questioning, I was
surprised to find that I was not booted due to any strong beliefs
I had about police, God, etc.”159
The defendant in Goupil argued on appeal that the juror’s
blog constituted prejudicial extrinsic communication with a
third party and that the juror was personally biased against
the defendant.160 In upholding the defendant’s conviction, the
federal court noted the state trial court’s extensive post-trial
voir dire.161 During this voir dire, the trial court determined
that no other juror read the blog or was even aware of its
existence.162 The trial court also found that the blog posts did
not discuss the defendant’s case specifically and that the juror
did not demonstrate any pre-trial bias.163 The court also
analogized the blog to “a personal journal or diary, albeit one
that the author publishes to the Web and permits others to
read.”164 The court stated that the defendant “surely would not
claim that the diary constitutes an ‘extraneous communication’
with third parties of the sort that gives rise to a presumption of
prejudice.”165
As these cases illustrate, courts are less likely to disturb
the ultimate verdict because of a juror’s online comments
absent the presence of one of the following factors: (1) the juror
discussed details of the trial, (2) the juror demonstrated a pre-
trial bias, (3) other jurors saw the information, (4) the posts
revealed that the juror was considering facts not admitted into
158. Id. at *2.
159. Id.
160. Id. at *5–6.
161. Id. at *8.
162. Id. at *7.
163. Id. at *8. The court noted:
The fact that Juror 2 might have come to the criminal justice process
with preconceived notions about the “local riff-raff” and even a mistaken
understanding of which party bears the burden of proof in a criminal
trial is, in this case, of little moment. . . . [T]he [trial] court reasonably
and sustainably concluded that: (1) Juror 2’s comments did not relate to
[the defendant’s] trial; [and] (2) Juror 2 understood the presumption of
innocence . . . .
Id. at *10.
164. Id. at *7.
165. Id.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 433
evidence, or (5) a third party contacted the juror about her
comments.166
3. Reasons for Improper Juror Communications
In some respects, the reasons for improper juror
communications and research are similar. Like juror research,
some juror communications occur because of a
misunderstanding of the judge’s instructions.167 In State v.
Dellinger, a West Virginia juror never told the trial judge that
she interacted with the defendant via MySpace despite being
asked during voir dire whether she knew the defendant.168
When the defendant’s conviction was later overturned because
of the juror’s lack of candor, the court asked the juror why she
did not reveal that she knew the defendant and had interacted
with him on MySpace.169 According to the juror:
I just didn’t feel like I really knew him. I didn’t know him personally. I’ve never, never talked to him. And I just felt like, you know, when [the trial judge] asked if you knew him personally or if he ever came to your house or have you been to his house, we never did. . . . I knew in my heart that I didn’t know him. . . . [M]aybe I should have at least said that, you know, that he was on MySpace, which really isn’t that important, I didn’t think.
170
Many jurors also do not consider or realize that texting,
emailing, tweeting, and blogging are prohibited forms of
166. Richard Raysman & Peter Brown, How Blogging Affects Legal
Proceedings, LAW TECH. NEWS (May 13, 2009), http://www.law.com/jsp/
lawtechnologynews/PubArticleLTN.jsp?id=1202430647333&slreturn=1&hbxlogin
=1 (paid subscription) (“When jurors blog about ongoing trials, there are several
key considerations: Did the jurors discuss details of the trial? Did the jurors
display a pretrial bias for or against one party? Did fellow sitting jurors read the
blog or electronic communication during the trial and thus become unduly
influenced?”).
167. Rosalind R. Greene & Jan Mills Spaeth, Are Tweeters or Googlers in Your
Jury Box?, ARIZ. ATT’Y, Feb. 2010, at 38, 39 (“It seems, however, that many jurors
do not see blogging, tweeting or posting as communication, or at least they don’t
consider it to fall within the rubric of traditional admonitions.”).
168. State v. Dellinger, 696 S.E.2d 38, 40 (W. Va. 2010).
169. Id. at 41.
170. Id.
434 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
communication.171 Noted juror expert Paula Hannaford-Agor
points out that, “For some, tweeting and blogging are simply an
extension of thinking, rather than a form of written
communication.”172 Not surprisingly, then, jurors continue to
communicate with other jurors (prior to deliberations) and with
outside parties (prior to the verdict) despite admonitions from
judges.173
Also, as with online research, some jurors violate the rules
on prohibited communications because they have grown
attached to the technological advancements brought by the
Digital Age.174 For these jurors, going any extended period of
time without communicating via a social media website, text,
tweet, or blog is a challenge.175 This desire for constant contact
is so strong that it can almost be categorized as an
“addiction”—one that they cannot give up even when called to
serve on a jury.176 Jurors falling into this category are more
likely to discuss the case with others.177
171. Allison, supra note 97 (“It may seem obvious that you shouldn’t broadcast
your juror experience live on Twitter, but even sophisticated people need
reminders.”).
172. Hannaford-Agor, supra note 60, at 43.
173. Even some lawyers and judges have difficulty understanding the concept.
For example, one lawyer-juror thought that he could blog about a case he was
sitting on: “Nowhere do I recall the jury instructions mandating I can’t post
comments in my blog about the trial.” Attorney Discipline, CAL. B.J. (Aug. 2009),
http://archive.calbar.ca.gov/%5CArchive.aspx?articleId=96182&categoryId=96044
&month=8&year=2009.
174. See Jerold S. Solovy & Robert L. Byman, Confronting the Fact of Juror
Research, LAW TECH. NEWS (Nov. 30, 2009), http://www.law.com/jsp/
lawtechnologynews/PubArticleLTN.jsp?id=1202435852040 (paid subscription)
(“[W]e cell phone abusers, we internet junkies, we believe it is our God-given right
to be connected.”).
175. See Anita Ramasastry, Why Courts Need to Ban Jurors’ Electronic
Communications Devices, FINDLAW (Aug. 11, 2009), http://writ.news.findlaw.com/
ramasastry/20090811.html (“Citizens have become increasingly reliant on such
devices and applications. Indeed, many use them incessantly, as a lifeline to their
friends, relatives, and colleagues—especially when they are at meetings,
conferences, or otherwise away from their normal office or home routines.”).
176. See McGee, supra note 28, at 310; Susan Macpherson & Beth Bonora, The
Wired Juror, Unplugged, TRIAL, Nov. 2010, at 40, 42 (“[A]ddiction to Internet
access is not limited to young jurors.”).
177. Ralph Artigliere, Sequestration for the Twenty-First Century:
Disconnecting Jurors from the Internet During Trial, 59 DRAKE L. REV. 621, 639–
40 (2011) (“To some jurors, the cell phone, iPad, notebook, or other digital device
is a lifeline to which they feel addicted. These jurors require constant
communication with others on events and matters from the mundane to the
critical.”); see also Cassandra Jowett, ‘Google Mistrials’ Derail Courts; Critics Say
System Ignores Impact of New Technology, NAT’L POST, Mar. 23, 2009, at A1 (“The
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 435
Finally, in other respects, the reasons behind improper
juror communications are completely different from online
research. For example, some, like the jury foreman in Goupil,
feel the need to constantly chronicle their daily activities to the
general public.178 This desire by the so-called “Tell-All
Generation” to put their lives on display to the world is not
shed just because they are called to serve on juries.179 Rather,
this change in daily routine may actually increase the appeal to
reveal180 because jury duty “can in its own strange way be an
escape from the usual rhythms of city life.”181
Regardless of whether the rationale behind improper juror
communications is similar or dissimilar to juror research, one
thing is certain: The Digital Age has had a significant influence
on juror behavior. With respect to juror research, the impact
has been almost entirely negative. Save for the opportunity to
become more like grand jurors,182 few positive attributes arise
from providing jurors with better methods by which to conduct
research. Arguably, even the staunchest advocates of the so-
called “Active Jury”183 would deem research by jurors
detrimental to the legal process.
modern addiction to instant communication appears to have given rise to the
‘Google mistrial’—the use of new technology to inadvertently skew the scales of
justice.”).
178. Artigliere et al., supra note 38, at 9 (“Some jurors will want to text what
they are doing at any given moment and why they are doing it to friends, family,
and thousands of strangers.”).
179. See Laura M. Holson, Tell-All Generation Learns to Keep Things Offline,
N.Y. TIMES, May 8, 2010, at A1, available at http://www.nytimes.com/
2010/05/09/fashion/09privacy.html (arguing that, according to conventional
wisdom, “everyone under 30 is comfortable revealing every facet of their lives
online, from their favorite pizza to most frequent sexual partners”).
180. Michael Bromby, The Temptation to Tweet—Jurors’ Activities Outside the
Trial (Mar. 26, 2010) (unpublished manuscript), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1590047 (describing one of the
few studies to track Twitter comments by jurors and prospective jurors). For
examples of celebrities tweeting about their jury experiences, see Live from the
Jury Box, It’s Steve Martin!, ZIMBIO (Dec. 22, 2010, 12:53 PM), http://
www.zimbio.com/Steve+Martin/articles/1StTKdTeaji/Live+jury+box+Steve+
Martin, and Debra Cassens Weiss, Media Atwitter over Al Roker’s Twitter Photos
from Jury Duty Wait, A.B.A. J. (May 29, 2009, 9:08 AM),
http://www.abajournal.com/
news/article/media_atwitter_over_al_rokers_twitter_photos_from_jury_duty_wait.
181. Ariel Kaminer, The Torturous Trials of the Idle Juror, N. Y. TIMES, Oct. 1,
2010, at MB1, available at http://www.nytimes.com/2010/10/03/nyregion/
03critic.html.
182. See generally Hoffmeister, supra note 77.
183. Steven I. Friedland, The Competency and Responsibility of Jurors in
Deciding Cases, 85 NW. U. L. REV. 190, 219–20 (1990). Active juries are generally
436 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
In contrast, there is a growing trend in the United States
to allow jurors, prior to the close of trial, to discuss among
themselves evidence introduced in court.184 For those who
support juror-to-juror communications prior to deliberations,
the Digital Age—with its smart phones, blogs, and social media
websites—is a boon because it facilitates this practice. As for
jurors discussing the case with third parties prior to the
verdict, little can be said in support of this activity. Similar to
juror research, it should not occur, and the technological
advancements that support this practice are a detriment to the
legal system.
The next portion of this Article, Part II, will discuss four
possible remedies to address the problems raised in Part I. The
proposed solutions are as follows: (1) imposing penalties on
jurors, (2) investigating jurors, (3) allowing juror questions,
and (4) improving jury instructions. These remedies take
various approaches in regulating juror behavior. The first two
rely on punishment and oversight, while the last two use
empowerment and education.185
II. POSSIBLE SOLUTIONS
A. Imposing Penalties
The first remedy analyzed in this Article is juror penalties,
which can take various forms that range from fines186 to public
described as those that are more engaged in the trial process and allowed to ask
questions, take notes, and bring the instructions or transcripts back to the jury
room. Jannessa E. Shtabsky, Comment, A More Active Jury: Has Arizona Set the
Standard for Reform with Its New Jury Rules?, 28 ARIZ. ST. L.J. 1009, 1011–12
(1996).
184. See Anderson, supra note 113, at 92.
185. See Hannaford-Agor, supra note 60, at 43 (“Juror education at every stage
of jury service should be the first and foremost preventative measure against
Google mistrials.”).
186. See, e.g., Andria Simmons, Georgia Courts to Bar Jurors from Internet,
ATLANTA J.-CONST. (Mar. 30, 2010, 6:54 PM), http://www.ajc.com/news/georgia-
courts-to-bar-420308.html. Also, if fines are indeed used, the court should
consider imposing day fines, which “are based on an elementary concept:
‘punishment by a fine that should be proportionate to the seriousness of the
offense and should have roughly similar impact (in terms of economic sting) on
persons with differing financial resources who are convicted of the same offense.’ ”
John W. Clark et al., Social Networking and the Contemporary Juror, 47 CRIM. L.
BULL. 83, 91–92 (2011) (quoting BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF
JUSTICE, HOW TO USE STRUCTURED FINES (DAY FINES) AS AN INTERMEDIATE
SANCTION 1 (1996), available at https://www.ncjrs.gov/pdffiles/156242.pdf).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 437
embarrassment187 to sequestration.188 The common theme with
all penalties is that once imposed, they make citizens less
inclined to want to serve as jurors.189 The average individual
views jury duty as a burden that pulls so-called “citizen
volunteers” away from their jobs, families, and friends to
perform a sometimes stressful, and other times mundane, civic
duty for which they receive minimal pay, if any at all.190 In
fact, it is quite common for individuals to think of excuses, real
or imagined, to get out of serving jury duty.191 Once jurors
realize that, in addition to the possibility of sequestration, they
run the risk of being penalized, the incentive to avoid jury duty
will only increase.192 Therefore, penalties should be a last
resort in preventing juror misconduct.
1. Contempt
Contempt is one of the more common penalties for jurors
who violate court rules.193 Once imposed, it allows the court to
fine the juror.194 To date, at least one state (California) has
increased its civil and criminal contempt penalties to address
juror misconduct in the Digital Age. The recently enacted
California law allows “punishment of jurors who electronically
discuss confidential legal proceedings.”195 According to the
187. See, e.g., Ed White, Judge Punishes Michigan Juror for Facebook Post,
YAHOO! NEWS (Sept. 2, 2010), http://news.yahoo.com/judge-punishes-michigan-
juror-facebook-post.html.
188. See infra Part II.A.3.
189. See Brian Grow, Juror Could Face Charges for Online Research, REUTERS
(Jan. 19, 2011, 1:11 PM), http://www.reuters.com/article/2011/01/19/us-internet-
juror-idUSTRE70I5KI20110119 (“But penalties could also increase resistance to
serving on juries. ‘It’s a Catch-22 for judges,’ said Thaddeus Hoffmeister . . . .”).
190. According to one Jury Survey respondent, “Because jurors are citizen
volunteers, the least invasive approach should be used until proven ineffective.”
Jury Survey, supra note 36.
191. King, supra note 32, at 2704.
192. David P. Goldstein, Note, The Appearance of Impropriety and Jurors on
Social Networking Sites: Rebooting the Way Courts Deal with Juror Misconduct,
24 GEO. J. LEGAL ETHICS 589, 601 (2011) (“With the knowledge that they could
face fines or even prosecution for something as innocuous as updating a Facebook
status or sending Twitter messages, people may go even further out of their way
to avoid jury duty.”).
193. “Contempt” refers to “[c]onduct that defies the authority or dignity of a
court or legislature.” BLACK’S LAW DICTIONARY 360 (9th ed. 2009).
194. See id.
195. Cheryl Miller, New Bill Targets Web-Surfing Jurors, RECORDER, Feb. 22,
2010, at 1.
438 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
legislative director of the assemblyman who introduced the
initial bill, “It’s really just the law catching up with technology
when it comes to the sanctity of the jury room.”196
Prior to exercising its contempt authority, a court should
first determine why a juror violated the court’s rules.197 Jurors
violate court rules for a variety of reasons.198 Some do it
intentionally; others do it unintentionally. Some do it for
personal gain; others do it in a misguided effort to better fulfill
their duties as jurors. To discover the juror’s motivation for
violating the court’s instructions, the trial judge should directly
ask the juror. In most instances, the juror will be quite candid
with the court.199 Many jurors openly state that they
disregarded the court’s rules because of curiosity200 or a
misinterpretation of the judge’s instructions.201 In those cases
where the juror is not forthcoming or the court questions the
juror’s credibility, the court should examine the context of the
juror’s actions.
After determining the reasons behind the juror’s conduct,
the court should then decide whether a contempt sanction will
prevent similar behavior in the future. For example, holding a
juror in contempt for misinterpreting jury instructions may not
curb similar behavior in the future. However, if the juror did
fully comprehend the jury instructions but disregarded them
anyway because she wanted to be the first to reveal
information about the case on her blog, the court may want to
consider sanctions. Finally, the court should weigh the long-
term impact of penalties on the legal system—one that needs
citizen participation to effectively operate.
196. Id.; see also Eric P. Robinson, New California Law Prohibits Jurors’ Social
Media Use, CITIZEN MEDIA L. PROJECT (Sept. 15, 2011),
http://www.citmedialaw.org/blog/2011/new-california-law-prohibits-jurors-social-
media-use.
197. For a good discussion of when to hold a juror in contempt for violating the
court’s prohibitions against conducting research, see Superior Court of N.J., In the
Matter of Lawrence Toppin, LAW OFF. DONALD D. VANARELLI (Oct. 11, 2011),
http://www.dvanarelli.com/blog/wp-content/uploads/2011/10/Matter-of-Lawrence-
Toppin.pdf.
198. See supra Parts I.A.1–2, I.B.2.
199. See supra Part I.A.
200. See Frederick, supra note 83 and accompanying text.
201. See, e.g., Russo v. Takata Corp., 774 N.W.2d 441, 450 n.* (S.D. 2009).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 439
2. The “Luddite Solution”202
Besides contempt proceedings, the court may also penalize
jurors by depriving them of the tools they need to conduct
research or communicate with third parties. At present, a
number of jurisdictions across the country restrict juror access
to cell phones and the Internet.203 This so-called Luddite
Solution, which was noted by several Jury Survey
respondents,204 can take a variety of forms. Some courts do not
allow jurors to enter the courthouse with any electronic
communication devices.205 Other courts impose restrictions
only during deliberations.206
The latter policy appears to make more sense than the
former for two reasons. First, depriving jurors of their
electronic communication devices for an entire day can
constitute a significant hardship and make jurors feel as
though they are being controlled.207 Second, it creates a
logistical problem for the court, which becomes responsible for
ensuring that jurors have alternative forms of communication
and can be reached by family members, friends, and employers.
Both policies, however, lose effectiveness with trials lasting
beyond one day. This is because jurors can simply wait until
they get home to violate the judge’s instructions.208
202. “Banning all cell phones, I-Pads [sic], and laptops for everyone called in
for jury duty is unlikely to work and will be viewed as a Luddite solution with
little support in the jury pool.” The Honorable Dennis M. Sweeney, Circuit Court
Judge (Retired), Address to the Litigation Section of the Maryland State Bar
Association: The Internet, Social Media and Jury Trials—Lessons Learned from
the Dixon Trial 3 (Apr. 29, 2010) (transcript available at http://juries.typepad.com/
files/judge-sweeney.doc).
203. See, e.g., Jury Survey, supra note 36 (“In the CD of Illinois jurors are not
allowed to bring cell phones into the courtroom.”; “We take up their cell phones at
the door.”). See generally Eric P. Robinson, Jury Instructions for the Modern Era:
A 50-State Survey of Jury Instructions on Internet and Social Media, 1 REYNOLDS
CTS. & MEDIA L.J., 307 (2011).
204. See Jury Survey, supra note 36.
205. Id.
206. See id. (“I require them to surrender cell phones and other such devices
when they retire to deliberate.”).
207. Goldstein, supra note 192, at 602 n.108.
208. Allison, supra note 97 (“Courts can also ban mobile devices from the
courtroom—some already do—though there could be some backlash from jurors
accustomed to being in constant communication with family and friends. And that
still doesn’t keep them from doing research on Google or tweeting when they get
home.”).
440 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
Compared to the traditional methods used to prevent juror
misconduct, the Luddite Solution appears to be extreme and an
overreaction to the problems presented by online research and
communications. For example, courts do not routinely deprive
jurors of their radios and televisions even though these devices
might be used to learn information about the case.209 Instead,
jurors simply are told to avoid watching or listening to
programs about the trial on which they sit.210 Even in rare
instances of sequestration, jurors are not necessarily deprived
of access to the radio or television.211 Thus, jurors should not be
deprived of their laptops and smartphones but rather should be
instructed that neither is to be used to research the case or to
discuss it.212
209. See ADMIN. OFFICE OF THE ILL. COURTS, A HANDBOOK FOR ILLINOIS
JURORS: PETIT JURY (2011), available at http://www.state.il.us/court/circuitcourt/
Jury/Jury.pdf (“YOU SHOULD AVOID NEWSPAPERS OR RADIO AND
TELEVISION BROADCASTS which may feature accounts of the trial or
information about someone’s participation in it.”).
210. Robert Little, Their Holiday Task: Don’t Talk or Listen, BALT. SUN (Nov.
26, 2009), http://articles.baltimoresun.com/2009-11-26/news/bal-md.jurors26nov26
_1_pressure-benefit-jurors-informal-vote-counts (“The judge implored the panel to
stay away from newspapers, television broadcasts and idle Dixon-related chatter,
but few courtroom observers could imagine 12 people spending the next four days
in Baltimore without encountering at least a whiff of the criminal case against the
city’s mayor.”).
211. See Thaddeus Hoffmeister, Lifetime Off Limits for Casey Anthony Juries?,
JURIES (Apr. 6, 2011), http://juries.typepad.com/juries/2011/04/lifetime-off-limits-
for-casey-anthony-jurors.html.
212. See Public Hearing Before the Mich. Supreme Court 34 (2009) (statement
of Robert P. Young, J.), available at http://www.courts.michigan.gov/
supremecourt/resources/administrative/PublicHearings/051209-
PublicHearingTranscript.pdf. Justice Young stated:
I have a theory about technology. We oughtn’t impose on technology
more than we impose on similar activities we conduct without
technology. . . . [W]e used to have newspapers, we used to tell people not
to read them. We have television[s]—we used to tell people not to listen
to them. So . . . why would we do more than instruct jurors that [they]
may not use this newer technology to do research in the same way that
they could do if . . . prior to the time we had Blackberrys and PDAs[,]
they could have gone to the library and done this research. . . . I’m
struggling to understand why just because we now have the availability
of a library in our hands we should be doing more than saying you may
not use that library whether it’s at a physical location somewhere other
than the court or you can bring it in on a PDA.
Id.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 441
3. Sequestration
Of the possible remedies available, sequestration best
ensures juror compliance. This is because the court has direct
control of the jurors’ environment. While popular in the past
and still relied upon in some jurisdictions for high-profile and
capital trials, sequestration is not widely used today.213 Despite
this fact, some believe that sequestration, because of its
deterrent effect, should be mentioned to all jurors upon initial
empanelment.214
Sequestration is generally disfavored because of the
burden it places on courts and jurors.215 It is expensive for a
court to lodge jurors throughout a trial.216 At present, courts
are struggling to pay the nominal fee given to jurors for their
service.217 Additional costs might break the budget of many
jurisdictions.218 Sequestration also generally results in a longer
jury selection process, as many potential jurors will attempt to
get excused from jury service because they either cannot or
prefer not to be away from their families and friends for an
extended amount of time.219 For the most part, jurors view
213. See King, supra note 32, at 2713 (“Eventually, the sluggish pace of trials
prompted courts to abandon their first line of defense against jury misconduct:
sequestration.”); see also Marcy Strauss, Sequestration, 24 AM. J. CRIM. L. 63, 71–
72 (1996).
214. Fallon, supra note 31, at 966; see also Artigliere, supra note 177, at 643
(quoting a Florida judge as saying, “I have two ways I can do this. I can lock you
up—that’s called sequestering, it’s a fancy word for locking you up—during the
course of the trial, or I can have you promise me that you will strictly abide by my
instructions during the trial . . . .”).
215. See Jury Survey, supra note 36 (“Sequestration [is] very burdensome on
jurors . . . [and] very expensive for taxpayers.”).
216. See, e.g., Rob Shaw, Costs of Casey Anthony Case Not Just Measured in
Dollars, TAMPA BAY ONLINE (July 17, 2011), http://www2.tbo.com/news/breaking-
news/2011/jul/17/13/costs-of-casey-anthony-case-not-just-measured-in-d-ar-244247
(“It cost more than $30,000 just to feed the Pinellas County jury for six weeks. . . .
The tab was more than $112,000 to put the jurors up at a nice hotel.”).
217. See, e.g., Joe Guillen, Cuyahoga Cuts Jurors’ Daily Pay, PLAIN DEALER,
May 14, 2009, at B2 (discussing decisions in several Ohio counties to reduce juror
pay in order to help balance county budgets).
218. See, e.g., Bob Egelko, Budget Woes Slow the Wheels of Justice; Crisis
Could Lead to 200 Layoffs, Close 25 S.F. Courts, S.F. CHRON., July 19, 2011, at A1
(illustrating that a San Francisco budget crisis will result in the city laying off
forty percent of its Superior Court employees).
219. King, supra note 32, at 2713 (“Judges concerned about jury competence
recognized that sequestration deterred many potential ‘reliable’ jurors from
serving as jurors.”); Charles H. Whitebread, Selecting Juries in High Profile
Criminal Cases, 2 GREEN BAG 2D 191, 195–96 (1999).
442 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
sequestration negatively because they must live in a controlled
environment away from their residences and those with whom
they normally associate.220
One twist to the old idea of sequestration is “virtual
sequestration.”221 Here, jurors remain in their own homes but
consent to having their access to the Internet and certain
electronic devices either monitored or blocked.222 While
arguably less burdensome and probably less expensive than
regular sequestration, virtual sequestration may be viewed by
some as online snooping and overly intrusive.223 However, as
discussed next, some attorneys currently conduct an informal
version of virtual sequestration by investigating and
monitoring the online activities of jurors.
B. Investigating Jurors
Besides imposing penalties, investigating jurors also works
to limit improper juror research and communications. These
investigations are carried out primarily by attorneys or their
staff and occur via the Internet.224 Most people have at least
one online reference or “footprint,” whether put there
personally or by someone else.225 Attorneys investigate
220. See Strauss, supra note 213, at 106–07.
221. This idea was recently raised at a conference. See Professor Eric Chaffee,
Address at the Legal Scholarship Conference at the University of Toledo College
of Law (June 2010). This author is unaware of any jurisdiction that has
implemented virtual sequestration. However, at least one enterprising district
attorney in Texas is considering offering jurors free access to the court’s wireless
network in exchange for temporarily “friending” his office, which, depending on
privacy settings, would allow the DA to monitor the juror’s Facebook account. See
Ana Campoy & Ashby Jones, Searching for Details Online, Lawyers Facebook the
Jury, WALL ST. J., Feb. 22, 2011, at A2; see also Jack Zemlicka, Judges in
Wisconsin Set Electronic Media Limits for Juries, WIS. L.J., May 10, 2010 (citing a
circuit judge as suggesting that judges “could ask jurors engaged in social
networking that, if empanelled, would they consent to being friended by the
court”).
222. Address by Eric Chaffee, supra note 221.
223. Julie Kay, Social Networking Sites Help Vet Jurors, LAW TECH. NEWS
(Aug. 13, 2008), http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.
jsp?id=1202423725315 (paid subscription).
224. See Jonathan M. Redgrave & Jason J. Stover, The Information Age, Part
II: Juror Investigation on the Internet—Implications for the Trial Lawyer, 2
SEDONA CONF. J. 211, 211 (2001).
225. Allison, supra note 97 (“Everybody has something on them on the Web,
and everybody can look it up.”) (quoting attorney Daniel Ross).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 443
jurors226 by searching the jurors’ digital trails227 or Internet
footprints.228 This practice, which occurs before, during, and
after trials, can take various forms.229 The most basic level is a
name search on an Internet search engine.230 However, many
attorneys employ far more sophisticated procedures such as
extracting information from social networking sites and
databases231 and monitoring the online activities of jurors.232
Recently, online investigation of jurors has gained
increased acceptance among practitioners.233 Moreover, courts
and state bar associations have both approved234 and
encouraged the practice.235 Proponents argue that the online
investigation of jurors by attorneys has uncovered numerous
instances of juror misconduct.236 Furthermore, proponents
claim that once jurors realize that many of their voir dire
answers can be verified, they either will be more truthful or
will request dismissal from the case.237 Finally, jurors who
226. For a discussion of judges investigating jurors, see John DiMotto, Judges
and the Internet—Juror Information, BENCH & B. EXPERIENCES (Apr. 28, 2010),
http://johndimotto.blogspot.com/2010/04/judges-and-internet-juror-
information.html (the blog of a Milwaukee County Circuit Court Judge).
227. Hoffmeister, supra note 40, at 32; cf. Tresa Baldas, Open Web, Insert Foot,
NAT’L L.J. (May 10, 2010), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=
1202457874016&slreturn=1 (discussing lawyers “talking trash about clients—
online, leaving a digital trail for bar counsel to follow”).
228. Jeffrey T. Frederick, Seasoned Jury Expert Shares Secrets of Voir Dire
and Jury Selection, YOURABA (Mar. 2011), http://www.americanbar.org/
publications/youraba/201103article01.html; see also Kay, supra note 223.
229. See Zemlicka, supra note 221 (“Since the explosion of social networking, [a
Wisconsin attorney] regularly researches jurors and monitors their online activity
during lengthy trials. ‘It’s not unusual for someone in my office to run the name of
a juror, if we get them ahead of time, through Google, Twitter or Facebook,’ he
said.”) (internal quotation marks added).
230. Hoffmeister, supra note 40.
231. Id.
232. Id.; see also Kay, supra note 223.
233. Hoffmeister, supra note 40.
234. See, e.g., Carino v. Muenzen, No. A-5491-08T1, 2010 N.J. Super. Unpub.
LEXIS 2154, at *26–27 (N.J. Super. Ct. App. Div. Aug. 30, 2010) (admonishing a
trial judge for forbidding counsel from investigating jurors online during jury
selection); N.Y. Cnty. Lawyers’ Ass’n Comm. on Prof’l Ethics, Formal Op. 743
(2011) [hereinafter N.Y. Ethics Opinion] (“It is proper and ethical . . . for a lawyer
to undertake a pretrial search of a prospective juror’s social networking site.”).
235. See, e.g., Johnson v. McCullough, 306 S.W.3d 551, 558–59 (Mo. 2010)
(encouraging attorneys to prevent retrials by investigating jurors’ litigation
history prior to empanelling the jury).
236. Hoffmeister, supra note 40.
237. Molly McDonough, Rogue Jurors, A.B.A. J., Oct. 2006, at 39, 43 (“Because
judges are emphasizing [criminal background] checks [for jurors] . . . more jurors
drop out before the jury is formally seated and thus ‘fewer and fewer people are
444 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
know that their online activities will be investigated are more
likely to follow court instructions throughout the trial.238
While online investigation of jurors will help reduce
incidents of juror misconduct associated with the Digital Age,
the practice has its limitations. First, as with imposing
penalties, investigating jurors does not address the reasons
that jurors violate court rules.239 Therefore, it does little to
combat the root causes of juror misconduct. Second, unless
courts impose virtual sequestration240 by requiring jurors to
make all of their online activities and communications subject
to review, certain misconduct will go undetected.
Third, and most problematic, looking for information about
jurors online raises privacy issues. According to Judge Richard
Posner, “Most people dread jury duty—partly because of
privacy concerns.”241 The following quotation reflects the view
held by many on this issue: “The Internet in so many areas
creates an extraordinary conflict between the desire for
information and the desire for privacy.”242 Thus, as more
citizens realize that jury duty now includes online background
checks and monitoring, it is likely that the low juror summons
response rates in certain parts of the country will only get
worse.243
Finally, there is a concern that attorneys will not reveal
juror misconduct that they discover to the court or opposing
counsel, especially if they think that a particular juror is
advantageous to their side or if they agree with the overall
outcome of the trial.244 At present, few courts require attorneys
coming up with a criminal record in contradiction of their jury questionnaire.’ ”)
(quoting a district attorney).
238. Goldstein, supra note 192, at 603 (“With the knowledge that they are
under the watchful eye of the court, jurors are less likely to discuss trials on their
social networking sites.”).
239. See supra Parts I.A.1–2, I.B.2.
240. See supra notes 221–23 and accompanying text.
241. United States v. Blagojevich, 614 F.3d 287, 293 (7th Cir. 2010) (Posner, J.,
dissenting from denial of rehearing en banc) (citations omitted).
242. Kay, supra note 223 (quoting litigator Dan Small).
243. See Elaine Silvestrini, Tampa Judge Threatens Jail for People Ignoring
Jury Summons, TAMPA BAY ONLINE (Oct. 3, 2011), http://duke1.tbo.com/content/
2011/oct/03/041120/judge-threatens-jail-for-residents-who-ignored-jur/news-
breaking/.
244. See John E. Nowak, Jury Trials and First Amendment Values in “Cyber
World,” 34 U. RICH. L. REV. 1213, 1225 (2001) (“The attorney with information
about cyber activities of potential jurors will be able to use jury challenges for
cause, and use preemptive challenges, in a strategically wise manner.”).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 445
to reveal information uncovered about jurors; most
jurisdictions reflect the views of the Jury Survey respondents
and consider such information to be attorney work product.245
Only a small number of states make information about jurors
discoverable in criminal cases.246 The states that impose such a
requirement, generally speaking, place the burden solely on the
prosecution and only after a request from defense counsel.247
Furthermore, the duty to disclose, in many instances, is limited
to private information as opposed to publicly available
information.248 Thus, it is highly unlikely that any information
pertaining to juror misconduct will be disclosed through the
discovery process.
As for an attorney’s ethical obligation to reveal such
information, the Rules of Professional Responsibility have not
kept pace with technological advancements brought by the
Digital Age. The most relevant rule of professional
responsibility with respect to juror misconduct is Rule 3.3,
Comment 12, which states:
Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the
245. Jury Survey, supra note 36; see also Moskitis, supra note 141, at 630–33;
Jeffrey F. Ghent, Annotation, Right of Defense in Criminal Prosecution to
Disclosure of Prosecution Information Regarding Prospective Jurors, 86 A.L.R. 3D
571 (1978). For cases not requiring the release of juror information obtained by
the prosecutor to defense counsel, see, for example, Monathan v. State, 294 So. 2d
401, 402 (Fla. Dist. Ct. App. 1974); State v. Jackson, 450 So. 2d 621, 628 (La.
1984); Martin v. State, 577 S.W.2d 490, 491 (Tex. Crim. App. 1979).
246. See, e.g., People v. Murtishaw, 631 P.2d 446, 465 (Cal. 1981), rev’d on
other grounds sub nom. Murtishaw v. Woodford, 255 F.3d 926 (9th Cir. 1999)
(finding that judges may permit discovery of juror information obtained by
opposing counsel); State v. Bessenecker, 404 N.W.2d 134, 138–39 (Iowa 1987)
(holding that a juror “rap sheet” can be discoverable in certain circumstances);
Commonwealth v. Smith, 215 N.E.2d 897, 901 (Mass. 1966) (finding that
information about prospective jurors obtained by the police should be available to
both parties).
247. See, e.g., Bessenecker, 404 N.W.2d at 138–39 (limiting access to juror
information obtained by county attorneys and requiring county attorneys to
disclose to the defense any information obtained).
248. See, e.g., State v. Beckwith, 344 So. 2d 360, 370 (La. 1977) (holding that
the prosecution was not required to disclose a compilation of prospective jurors’
voting records where there was no evidence that such information was
unavailable to the defendant through independent means); State v. Matthews,
373 S.E.2d 587, 590–91 (S.C. 1988) (holding that the prosecution was not required
to disclose results of investigation into potential jurors’ backgrounds where
defense counsel had an opportunity on voir dire to explore jurors’ “backgrounds,
attitudes, and characteristics”).
446 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.
249
In applying Rule 3.3, Comment 12, to the Facebook post of
the Michigan juror discussed in Part I,250 neither the defense
attorney nor the prosecution would have an ethical duty to
present this information to the court. In that case, the defense
attorney wanted to reveal the information discovered in the
Facebook post because it was beneficial to her client to remove
the juror.251 But the juror’s act was neither fraudulent nor
criminal, although it was improper and sufficient to cause her
removal.252 As that example illustrates, the current legal
system lacks adequate safeguards to ensure that all
disqualifying juror information is brought forward.
C. Allowing Questions
Allowing jurors to ask questions of witnesses would
significantly reduce the detrimental impact of the Digital Age
on jury service.253 This is because juror questions, like jury
instructions, address the reasons that jurors commit
misconduct.254 When jurors have their questions answered,
249. MODEL RULES OF PROF’L CONDUCT R. 3.3 cmt. 12 (2007). At least two
states—New York and Tennessee—have more expansive rules. See TENN. RULES
OF PROF’L CONDUCT R. 3.3(i) (2011) (“A lawyer who, prior to conclusion of the
proceeding, comes to know of improper conduct by or toward a juror or a
member of the jury pool shall report the improper conduct to the tribunal,”
confidentiality requirements notwithstanding.); N.Y. Ethics Opinion, supra
note 234. In addition, one court has held that “[i]t is unquestioned that each
party has an obligation to report the incompetency of any juror upon discovery.”
Cowden v. Wash. Metro. Area Transit Auth., 423 A.2d 936, 938 (D.C. 1980).
However, the Cowden decision has yet to be followed by any other court.
250. See supra notes 137–39 and accompanying text.
251. See supra notes 137–39 and accompanying text.
252. See supra notes 137–39 and accompanying text.
253. See Brickman et al., supra note 2, at 296 (“If jurors are turning to the
Internet because they are confused by important ideas or terminology in a trial, it
is in everyone’s best interest to forestall that by maximizing comprehension and
minimizing confusion.”).
254. See supra Part I.A.1. Consider also the case of Commonwealth v. Cherry,
where the defendant faced capital murder charges for killing his girlfriend’s
infant child. After finding the defendant not guilty on the charge of first-degree
murder, the jury retired for the day in order to consider involuntary manslaughter
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 447
they become less confused and curious and have greater
confidence in their verdicts.255 Prohibiting questions leads
jurors to seek alternative avenues for information.256
Admittedly, resolving issues like juror curiosity is no easy
task.257 Many of the questions that arise from a juror’s
inquiring mind cannot be answered directly due to restrictions
imposed by rules of evidence and the constitutional protections
guaranteed to parties and witnesses. This does not mean,
however, that these questions should be ignored.
For example, a juror might ask the court whether the
defendant is presently incarcerated. It is unlikely that the
judge would ever answer or pose such a highly prejudicial
question. But the judge can use this situation to her advantage
by turning it into a teaching point. The judge, even without
going into the details of the question, can once again instruct
the jury, including the juror who raised the question, that
certain evidence must not be examined or considered by the
jurors in order to protect the rights of the parties involved in
the case.258 This timely re-education of the jury is important
because answers to questions like the defendant’s incarceration
status259 are easily accessible online.260
and third-degree murder charges the next day. During the night, one juror
researched the term “retinal detachment,” which was a key issue with respect to
the injuries sustained by the infant. The juror’s online research resulted in the
judge declaring a mistrial. Interestingly, this same juror wanted to ask questions
during the trial, but the judge refused to allow questions. Sheena Delazio,
Mistrial Declared in Baby’s Death, TIMES LEADER (Jan. 15, 2011),
http://www.timesleader.com/news/Mistrial_declared_in_baby_rsquo_s_death_01-
14-2011.html.
255. See supra notes 66–103, 170–80 and accompanying text.
256. See supra notes 95–97 and accompanying text.
257. See Judge Dennis Sweeney (Retired), Social Media and Jurors, MD. B.J.,
Nov. 2010, at 44, 48 (arguing that, in addition to allowing jurors to ask questions,
judges “should prompt counsel to consider answering the obvious questions
presented instead of leaving them open”).
258. Robert F. Forston, Sense and Non-sense: Jury Trial Communication, 1975
BYU L. REV. 601, 630 (stating that juror questioning would “pinpoint . . . areas of
improper speculation and enable the trial judge to neutralize [its] effects by
appropriate admonition”) (quoting Bertram Edises, One-Way Communications:
Achilles’ Heel of the Jury System, 48 CAL. ST. B.J. 134, 137 (1973)).
259. See, e.g., Persons in Custody, MONTGOMERY COUNTY SHERIFF PHIL
PLUMMER, http://www.mont.miamivalleyjails.org (last updated Sept. 17, 2011)
(listing all inmates housed in the Montgomery County Jail in Ohio by name).
260. Brickman et al., supra note 2, at 291 (“With the advent of the Internet
and the ease with which it can be accessed anytime, anywhere, concerns about
exposure to pre-trial or mid-trial information obtained outside of the courtroom
and about juror use of such information take on a whole new dimension.”).
448 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
Besides reducing curiosity, allowing questions aids jurors
in understanding the trial. Questions by jurors signal to the
court and the attorneys what areas or topics are unclear and
need further clarification. 261 This in turn reduces the need for
jurors to speculate, conduct research, or contact outside third
parties for information.262
Finally, by asking questions, jurors become more confident
in their verdicts.263 This is attributable to a variety of factors.
First, jurors who ask questions are generally less passive and
more attentive during trial.264 Second, questions and their
answers decrease both speculation in the deliberation room and
uncertainty about the verdict.265
While some jurisdictions still do not allow jurors to pose
questions, many are increasingly allowing them in both civil
and criminal trials.266 This is not to say, however, that
questions by jurors are routine. Most jurisdictions that allow
jurors to submit written questions do so at the discretion of the
judge, who also decides whether those questions will be posed
to the witnesses.267 Thus, in some courts, jurors are not only
kept in the dark about questions but also discouraged or
261. See Kim Smith, AZ Jurors Are Given Bigger Say in Trials, ARIZ. DAILY
STAR (Feb. 28, 2011, 12:00 AM), http://azstarnet.com/news/local/article_c3c684dc-
f816-512e-b4cb-a5814300f65e.html.
262. See Brickman et al., supra note 2, at 298 (“The more they understand
what they hear in court, the less motivated they may be to do Internet research
for clarification.”).
263. See Judge John R. Stegner, Why I Let Jurors Ask Questions in Criminal
Trials, 40 IDAHO L. REV. 541, 543 (2004). See generally Steven Penrod & Larry
Heuer, Tweaking Commonsense: Assessing Aids to Jury Decision Making, 3
PSYCHOL. PUB. POL’Y & L. 259 (1997).
264. B. Michael Dann & Valerie P. Hans, Recent Evaluative Research on Jury
Trial Innovations, CT. REV., Spring 2004, at 12, 15.
265. Id. (citing various studies discussing the positive attributes of allowing
juror questions). “The overwhelming majority of jurors felt that being allowed to
put their questions to witnesses improved their role as decision makers . . . .
When asked how the question procedure helped, almost 75% of jurors answered
that the procedure helped them better understand the evidence.” Id.
266. See Nancy S. Marder, Answering Jurors’ Questions: Next Steps in Illinois,
41 LOY. U. CHI. L.J. 727, 747 (2010); see also Martin A. Schwartz, Selected
Evidence Issues Illustrated—Recent Decisions, Famous Trials, Movies and Novels,
855 PRACTISING L. INST. 19, 147–52 (2011); Colleen Jenkins, Change Lets Jurors
Submit Questions for Trial Witnesses, ST. PETERSBURG TIMES (Jan. 4, 2008),
http://www.sptimes.com/2008/01/04/State/Change_lets_jurors_su.shtml (“The
tweaks in the state’s jury system follow a nationwide trend toward fuller
participation by the citizen deciders of fact.”).
267. See State v. Fisher, 789 N.E.2d 222, 226–28 (Ohio 2003) (reviewing court
holdings on juror questioning in various jurisdictions).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 449
prevented from asking them.268 This is unfortunate because
jurors who are permitted to ask questions “feel more involved
in the trial” and report an enhanced satisfaction with their jury
service.269
Contrary to the growing national trend of allowing
questions by jurors, few Jury Survey respondents
recommended this practice for combating improper juror
research and communications.270 In fact, few Jury Survey
respondents thought this specific reform proposal would
decrease or prevent juror misconduct. Some Jury Survey
respondents went so far as to question the connection between
juror questions and misconduct.271 Others thought that
questions by jurors would cause the judge to lose control of the
courtroom. For example, one Jury Survey respondent wrote
that she was “[n]ot certain [that allowing juror questions]
would help—a judge couldn’t be certain where this would
lead.”272 This response indicates a lack of familiarity with how
jurors ask questions in court.
In the courts that allow juror questions, the normal
procedure is as follows: At the conclusion of a witness’s
testimony, the judge asks the jurors whether they have any
questions.273 If the jurors do have questions, they write them
down and then hand them to the bailiff, who gives the
questions to the judge.274 The judge and the attorneys review
the questions.275 The judge, after hearing any possible
objections from the attorneys, then decides whether she will
answer or pose the question to the witness.276 Thus, the
concern about “where this would lead” appears to be
unwarranted. Judges remain in control because they still serve
as gatekeepers, monitoring how questions are handled and
what information the jurors will receive. Judges lose control
268. Marder, supra note 266, at 747.
269. Dann & Hans, supra note 264, at 15.
270. Only six of forty-one Jury Survey respondents recommended allowing
jurors to ask questions. Jury Survey, supra note 36.
271. Id.
272. Id.
273. Barry A. Cappello & James G. Strenio, Juror Questioning: The Verdict Is
In, TRIAL, June 2000, at 44, 48.
274. Id.
275. Id.
276. Id.
450 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
when jurors, after growing frustrated with the inability to ask
questions, seek answers outside of the courtroom.277
The views expressed by the Jury Survey respondents
regarding juror questions may be attributed to the fact that
they dislike the idea of allowing anyone else in the courtroom
to ask questions.278 At present, only the judge and attorneys
have the power to ask questions. By sharing this right with
someone else, the judges and attorneys who participated in the
Jury Survey might feel that they have lost some power or that
jurors are now equal partners in the trial process.279 Also, the
Jury Survey respondents may share some of the concerns
raised by the Sixth Circuit Court of Appeals when it addressed
the issue of jurors asking questions in United States v. Collins:
There are a number of dangers inherent in allowing juror questions: jurors can find themselves removed from their appropriate role as neutral fact-finders; jurors may prematurely evaluate the evidence and adopt a particular position as to the weight of that evidence before considering all the facts; the pace of trial may be delayed; there is a certain awkwardness for lawyers wishing to object to juror-inspired questions; and there is a risk of undermining litigation strategies.
280
The potential problems raised by the Sixth Circuit and
Jury Survey respondents regarding juror questions must be
examined in the context of what now occurs when jurors are
not allowed to pose questions. Jurors go elsewhere and seek
answers through alternative means. According to Professor
Nancy Marder, jurors who are not afforded the opportunity to
ask questions during trial are more likely to engage in self-
277. Macpherson & Bonora, supra note 176, at 43 (“However, allowing and
even encouraging jurors to ask their questions in the courtroom is the best way to
maintain control over the evidence they consider, as it will reduce—if not
eliminate—the jurors’ motivation to get their questions answered online.”).
278. See Cappello & Strenio, supra note 273, at 48–49 (“Simply put, if a trial
judge sitting as a trier of fact without a jury can ask questions, jurors should have
the same right in the careful search for the truth.”).
279. See Smith, supra note 75, at 559 (“The fact that [juror questioning] is not
more widely employed may be due to a basic distrust of juries on the part of
judges and their fear that they will lose control of the trial process.”).
280. United States v. Collins, 226 F.3d 457, 461 (6th Cir. 2000).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 451
help.281 And, unlike in the past, self-help in the Digital Age is
easier for jurors to accomplish and more difficult for courts to
discover.282 By denying jurors even the opportunity to seek
answers to their questions in the presence of the judge, the
court encourages them to look elsewhere and rely on
alternative sources.283
D. Improving Instructions
The most obvious and popular solution for combating the
negative influence of the Digital Age is to modernize jury
instructions.284 This proposal received the greatest amount of
support from the Jury Survey respondents.285 In addition,
several courts have recently recommended improving
instructions to jurors.286 Thus, the majority of Part II will be
spent on this topic.
The problem with relying on jury instructions is that they
are only instructions—nothing more.287 In order for
instructions to be effective, jurors must follow them. In the
corruption trial of Mayor Sheila Dixon, the jurors, despite
repeated admonitions by the judge to desist, continued to
communicate via Facebook.288 Absent sequestering jurors and
281. MARDER, supra note 125, at 113 (“There are instances in which jurors
have, on their own, made site visits or consulted reference books, the Internet,
and lawyers who are not involved in the case.”) (footnote omitted).
282. See supra Part I.A.2.
283. See generally Macpherson & Bonora, supra note 176.
284. See King, supra note 32, at 2728. As Professor King notes, this interest in
more specific jury instructions is not new: “Calls for more explicit instructions to
jurors to keep out of mischief appeared as early as 1893 . . . .” Id.
285. Twenty-six of forty-one Jury Survey Respondents cited jury instructions
as an effective method of decreasing online research and improper
communications by jurors. Jury Survey, supra note 36.
286. See, e.g., United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011); State v.
Mitchell, 252 P.3d 586, 591 (Kan. Ct. App. 2011) (“We encourage our PIK
committee to consider a revision to the general instruction on juror
communication along the lines of that utilized in New York.”); Superior Court of
N.J., supra note 197 (“To avoid any similar instances from happening again, the
court recommends the model instructions to the attention of The Supreme Court
Committee on Model Criminal Jury Charges for a possible revision, which should
make unquestionably clear the prohibition on juror research and outside
materials is absolute.”).
287. People v. Jamison, No. 8042/06, 2009 WL 2568740, at *6 (N.Y. Sup. Ct.
Aug. 18, 2009) (“No matter what the instructions may be, they are only as
effective as the integrity of the juror who hears them.”).
288. Dixon Jurors Ignore Judge, Continue Facebook Posts, supra note 129. In
another example, a federal judge warned jurors in a death-penalty trial forty-one
452 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
confiscating all of their communication devices, which is both
burdensome and expensive, no surefire methods exist to ensure
compliance.289 Thus, jury instructions must be written in such
a manner as to create the optimum atmosphere for acceptance.
1. Component Parts
One way to increase the likelihood of adherence is to use
language easily understood by jurors.290 This includes avoiding
overly technical terms and offering descriptions of improper
conduct.291 Some jurors violate the rules against conducting
improper research because the instructions in place either are
unclear or do not specifically address the technological
advancements ushered in by the Digital Age.292 For instance,
although jurors are told in their initial summons not to “gather
any evidence” about the case, some nevertheless look up the
name of a party on the Internet.293 To those jurors, “gathering
evidence” may mean going to the library or the actual crime
scene, not necessarily performing a name or image search on
Google.294 This has caused some judges to “go beyond the
current boilerplate instructions to jurors and specifically
include references to the Internet and social media.”295
times not to discuss the trial with outside third parties, yet the jury foreperson
still contacted the press about the case prior to the end of the trial. See United
States v. Basham, 561 F.3d 302, 316–21 (4th Cir. 2009); Mark Sherman, Kagan:
No Need for Court Review of Rogue Juror, WASH. TIMES (May 31, 2010),
http://www.washingtontimes.com/news/2010/may/31/kagan-no-need-court-review-
rogue-juror.
289. See supra Part II.A.3.
290. Russo v. Takata Corp., 774 N.W.2d 441, 450 n.* (S.D. 2009) (“We suggest
circuit courts consider using simpler and more direct language in the [jury]
summons to indicate that no information about the case or the parties should be
sought out by any means, including via computer searches. This type of
admonishment is warranted given the ease with which anyone can obtain
information via the internet . . . .”).
291. See Zemlicka, supra note 221 (“Judges admit there is little they can do to
completely keep jurors from avoiding electronic communication, which is why
many stress the potential problems that even inane interaction can create.”).
292. See id. (“I think people know they can’t go home and talk to their wife
about a case, but they don’t think anything about firing off a bunch of texts . . . .
That is why you have to state it explicitly.”) (quoting a judge).
293. See, e.g., Russo, 774 N.W.2d at 452.
294. See id.; see also Sweeney, supra note 202, at 3 (“[A] deliberating juror
conducted an on-line search for the terms ‘livor mortis’ and ‘algor mortis’ on
Wikipedia . . . . When asked about it, the juror said, ‘To me that wasn’t research.
It was a definition.’ ”).
295. Browning, supra note 98.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 453
Similar issues arise with instructions about improper juror
communications.296 According to one legal commentator,
“People tend to forget that e-mail, twittering, updating your
status on Facebook is also speech . . . . There’s an impersonality
about it because it’s a one-way communication—but it is a
communication.”297 Therefore, for jury instructions to be
effective, they have to reflect the new methods by which
members of society communicate and interact.
In addition to being told what they cannot do, jurors need
to know why it is impermissible.298 Several Jury Survey
respondents echoed this belief, with one respondent stating
that jury instructions are “effective, if . . . the reason for the
rule is explained.”299 Providing the “why” is important because
jurors in the Digital Age are more receptive to learning
information online.300 Moreover, many jurors today feel
comfortable using technology to discover facts for themselves or
communicate with others.301 As a result, it is a challenge to get
these jurors to give up their methods of learning and acquiring
296. See Jason Cato, Burgeoning Social Networking System Has Legal
Community in a Twitter, PITTSBURGH TRIB.-REV. (Feb. 8, 2010),
http://www.pittsburghlive.com/x/pittsburghtrib/news/pittsburgh/print_666211.ht
ml.
297. Greg Moran, Revised Jury Instructions: Do Not Use the Internet, SIGN ON
SAN DIEGO (Sept. 13, 2009, 2:00 AM), http://www.signonsandiego.com/news/2009/
sep/13/revised-jury-instructions-do-not-use-internet (quoting professor Julie
Cromer Young); see also Trish Renaud, Watch out for Blogging Jurors, LAW TECH.
NEWS (Feb. 17, 2009), http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.
jsp?id=1202428284825 (paid subscription) (quoting a juror posting on his blog,
“Hey guys! I know jurors aren’t supposed to talk about their trial, but nobody said
they couldn’t LIVE-BLOG it, right?”).
298. Diane Jennings, Dallas Judges Take Pains to Keep Web from
Undermining Fair Trials, DALL. MORNING NEWS (Jan. 30, 2010),
http://www.dallasnews.com/news/community-news/dallas/headlines/20100130-
Dallas-judges-take-pains-to-keep-8754.ece (“Courts have to explain to people why,
not just tell people, ‘Don’t read the newspaper, don’t do your own research and
don’t Twitter’ . . . . Explain the rationale behind it.”) (quoting an attorney); see
also Macpherson & Bonora, supra note 176, at 42 (“To get through to jurors who
can’t quite believe that the judge really means no communication and no research,
the judicial admonition needs to do more than ‘just say no.’ Social science research
on persuasion has demonstrated that compliance can be measurably increased by
simply adding the word ‘because’ and some type of explanation.”).
299. Jury Survey, supra note 36.
300. See Christopher Hope, Web-Savvy Young Make Bad Jurors Because They
Cannot Listen, Says Lord Chief Justice, TELEGRAPH (Nov. 6, 2008, 7:33 PM),
http://www.telegraph.co.uk/news/uknews/law-and-order/3393061/Web-savvy-
young-make-bad-jurors-because-they-cannot-listen-says-Lord-Chief-Justice.html.
301. Id.
454 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
information and adhere to the court’s instructions.302 According
to two well-known trial consultants, “The deeply ingrained
habit of . . . resolving even minor factual disputes by getting
instant answers online makes it difficult to accept the
prohibition on doing so when confronted with a truly important
decision.”303 To make the court’s task easier, jurors need to be
told why practices that they regularly rely on are incompatible
with jury service.304
While a long discourse on due process is unnecessary,
jurors need to know that information obtained outside of the
courtroom cannot be considered when deciding a verdict
despite how inconsequential or helpful the information may
seem.305 Jurors should be told that, to ensure fairness in the
trial process, the parties must have the opportunity to refute,
explain, or correct the information jurors receive.306 According
to Ohio Supreme Court Justice Judith Ann Lanzinger:
One of the things we as judges need to do is explain why [the rules of evidence are] so important . . . . We’re not trying to keep the truth from anyone—pull the wool over anyone’s eyes. The rules of evidence are there for a reason to make sure both sides get a fair trial.
307
Failure to provide an explanation of the court’s instructions not
only decreases the likelihood of juror compliance but also
creates mistrust of the judicial system.308
In addition to providing the rationale behind the
instructions, judges must advise jurors of the negative
302. See Macpherson & Bonora, supra note 176, at 42 (“Many jurors under 40
are used to keeping their electronic devices close at hand and ignoring any
authority figure who attempts to impose prohibitions on their access to the
Internet.”).
303. Id.
304. According to one Jury Survey Respondent, jury instructions can be
effective if “given forcefully but fairly and [if] the reason for the rule is explained.”
Jury Survey, supra note 36.
305. See Brickman et al., supra note 2, at 297 (“Judges can acknowledge the
temptations of Internet research, but then can explain to jurors why their
cooperation in refraining from extrinsic research is so vitally important to the
fairness of the judicial system.”).
306. See supra Part I.A.
307. Jacob Lammers, Courts Adapting to Technology, NEWS-HERALD (June 13,
2010), http://www.news-herald.com/articles/2010/06/13/news/nh2621582.txt.
308. See Gareth S. Lacy, Untangling the Web: How Courts Should Respond to
Juries Using the Internet for Research, 1 REYNOLDS CTS. & MEDIA L.J. 167, 178
(2011).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 455
consequences of ignoring them.309 This starts by reminding
jurors that disregarding the court’s instructions is a violation of
their oath.310 Next, jurors should be told that failure to abide
by these rules may cause the court to declare a mistrial, which
is costly both in financial terms and in the emotional toll it
takes on those involved in the process.311 Also, jurors need to be
informed of the potential for contempt of court and the
subsequent penalties assessed to jurors who violate the court’s
instructions.312
Adding a self-policing section will also encourage
compliance with jury instructions.313 While some jurisdictions
have shied away from this approach for fear of creating
distrust and apprehension among jurors,314 jury instructions
should include language requiring jurors to report fellow jurors
for failing to follow the rules of the court.315 This watch-dog
309. Artigliere et al., supra note 38, at 14 (“Some judges tell jurors why it is
important to follow the instructions. Many jurors respond better to direction if
they understand the reason the requirement has been placed on them.”).
310. The value of the oath was recently illustrated in the first trial of former
Illinois Governor Rod Blagojevich. Holdout Juror in Blagojevich Case Explains
Her Reasoning, STLTODAY.COM (Aug. 28, 2010, 12:00 AM), http://
www.stltoday.com/news/national/article_f803c33c-18ef-5244-be18-
7235b1fc26a5.html (“[S]tanding her ground in the jury room was not easy. Other
jurors have acknowledged pressuring [the holdout] to change her vote on the
Senate seat. . . . One person asked the judge for a copy of the juror’s oath,
implying that [the holdout] wasn’t fulfilling her obligation.”).
311. Judge Margaret R. Hinkle, Criminal Practice in Suffolk Superior Court,
BOS. B.J., Nov.–Dec. 2007, at 6, 6 (“With a jury impasse, not only do jurors feel a
sense of incompleteness, but any mistrial imposes an enormous emotional and
financial cost on the prosecution, the defense, the victim and the
Commonwealth.”).
312. See Fallon, supra note 31, at 967.
313. See Artigliere et al., supra note 38, at 14 (“Another tactic is to ‘empower’
all jurors to report transgression by informing them of their duty to report any
violation of the court’s instructions, including any communication of any juror
with the outside about the case or any attempt to bring into court information
from outside the trial.”); see also Edward T. Swaine, Note, Pre-deliberations Juror
Misconduct, Evidential Incompetence, and Juror Responsibility, 98 YALE L.J. 187,
201 (1988).
314. Michigan proposed a rule on electronic device usage by jurors that
contained a requirement for jurors to report other jurors who violate the court’s
instructions. Correy Stephenson, Michigan Considers Rule on Juror Device Use,
ALLBUSINESS (May 12, 2009), http://www.allbusiness.com/legal/evidence-
witnesses/12333409-1.html (paid subscription). This requirement was later
removed. See Order: Amendment of Rule 2.511 of the Michigan Court Rules, MICH.
SUPREME CT. (June 30, 2009), http://courts.michigan.gov/supremecourt/Resources/
Administrative/2008-33.pdf.
315. Daniel William Bell, Note, Juror Misconduct and the Internet, 38 AM. J.
CRIM. L. 81, 97 (2010) (“Courts should conclude their preliminary instructions by
456 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
requirement is necessary because juror misconduct is difficult
to detect and prevent.316 An added benefit of this rule is that if
a juror violates the court’s instructions, for example by
researching the case or communicating with a third party, she,
for fear of being reported to the court, is less likely to reveal her
findings to other jurors and thereby taint the entire jury.317
Besides the actual substance of the jury instructions, there
are procedural questions such as when they should be given
and how often.318 As indicated in Part I, improper research and
communications by jurors occur at all stages of the trial,
including immediately upon receiving a jury summons.319
Thus, the earlier the instructions are given to jurors—for
example, in the jury summons or upon initial arrival at the
courthouse—the greater the chance for compliance. As for
frequency, several Jury Survey respondents stated that
instructions should be repeated as often as possible320 because
they are easily forgotten.321 This repetition usually comes in
the form of brief reminders during breaks in trial.322 Legal
commentators have also recommended that jurors be provided
with the instructions prior to starting deliberations.323
Another procedural recommendation involves having
jurors sign an oath or affidavit acknowledging the
instructions.324 The Jury Survey respondents were split on the
benefits of this proposal. One felt that, “[i]f jurors commit to
signing [a] declaration, they are more likely to not violate that
commitment.”325 Another stated that “actually sign[ing] a
telling the jurors that they have a responsibility to inform the court of any
misconduct that they witness.”).
316. Strutin, supra note 52 (“The hallowed ground of jury deliberations makes
it difficult to unearth, preserve and authenticate surreptitious electronic
communications and Web postings or to seek redress when they are uncovered.”).
317. Brickman et. al., supra note 2, at 298.
318. Artigliere et al., supra note 38, at 14.
319. See, e.g., Russo v. Takata Corp., 774 N.W.2d 441, 444 (S.D. 2009).
320. Jury Survey, supra note 36 (“Because it is repetitive and comes from the
judge I believe this is effective.”).
321. One Jury Survey respondent stated, “This is o.k. but would be forgotten
during the time delay from summons and jury duty. Moreover, it is more effective
when the jurors hear it from the judge.” Id.; see also Bell, supra note 315, at 91
(“Perhaps in part because Internet activity is such an integral, reflexive part of
many Americans’ lives, some judges not only give . . . instructions [not to use the
Internet] at the inception of trial, but also repeat them before each recess.”).
322. Artigliere et al., supra note 38, at 14.
323. JURORS: THE POWER OF 12, supra note 118, at 8–9.
324. See Moran, supra note 297.
325. Jury Survey, supra note 36.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 457
document may verify to them the importance.”326 Another
opposed such a policy, stating that “[w]e can’t turn jury duty
into a check list of things sworn to.”327 And yet another
respondent believed that this step is unnecessary if the judge
addresses the issue early in voir dire.328
At present, this Article does not favor requiring jurors to
sign an affidavit or contract stating that they will abide by the
jury instructions. Obtaining the juror’s signature would
probably heighten juror awareness about the importance of
following instructions; however, it seems overly formalistic.
Jurors should not have to enter into written agreements with
the court to fulfill their civic responsibilities. Furthermore, it
may not be necessary if the other suggestions recommended in
this Article are implemented. Moreover, taking such action
may lead jurors to falsely believe that these instructions are
superior or more important than all other instructions given to
them by the court.
Finally, certain jurors are going to ignore the court’s
instructions regardless of how well they are written and
delivered.329 For example, some jurors feel compelled to
chronicle every aspect of their life online or learn the entire
story about the case prior to rendering a verdict.330 To help
deal with these so-called rogue jurors, attorneys or preferably
the judge should ask all jurors during voir dire about their
online presence and their ability to limit their use of the
Internet during the trial.331 On occasion, straightforward and
direct questions are quite revealing, as some potential jurors
make their inability to follow court rules quite clear.332
326. Id.
327. Id.
328. See id.
329. Strutin, supra note 52 (“Sharing the minutest details of our lives through
mobile telecommunications has become second nature in the Information Age.”).
330. See supra Part I.A.2.
331. See Judge Linda F. Giles, Does Justice Go Off Track When Jurors Go
Online?, BOS. B.J., Spring 2011, at 7, 8–9 (“At the risk of sounding like a Luddite,
it seems to me that succumbing to the temptation of technology and allowing
jurors to go rogue is not the solution.”); Allison, supra note 97 (“I find that judges
are asking now during voir dire whether jurors have a blog and what the name of
the blog is . . . . If you get that commitment from the juror upfront, you’re more
likely to avoid problems down the line.”) (quoting a trial consultant).
332. Ross, supra note 27. Ross cites the following example:
In Kansas City, attorney Peter Carter asked potential jurors during voir
dire if they would follow instructions not to do Internet research. In
response, about six to 10 said that they would not. Carter also
458 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
In addition to weeding out jurors who refuse to follow the
judge’s instructions, these questions help educate jurors and
give them early notice about court prohibitions. They let the
juror know that some habits such as blogging or looking up
information on the Internet that are viewed as normal and
inconsequential during everyday life can have profound and
harmful consequences when conducted during jury duty. Also,
early questioning alerts the court and attorneys to those jurors
who might regularly blog or visit social media websites. This in
turn facilitates online monitoring of juror activity.333
Numerous jurisdictions have updated or are in the process
of updating their jury instructions to address the new methods
by which jurors communicate and research.334 Many of the
updates include the suggestions mentioned above. This Article
will now examine two sample jury instructions—one from
Multnomah County, Oregon335 and the other from the Judicial
Conference Committee on Court Administration and Case
Management (Judicial Conference Committee) of the federal
courts—to see how well these instructions adhere to the
previously discussed recommendations.
2. Sample Instructions
a. Multnomah County, Oregon
Do not discuss this case during the trial with anyone,
including any of the attorneys, parties, witnesses, your
friends, or members of your family. “No discussion” also
means no emailing, text messaging, tweeting, blogging or
discovered, simply by asking, that some six or seven of the 80 potential
jurors already had researched the case on the Internet.
Id.
333. See supra Part II.B.
334. Even the military is getting into the act. See Kent Harris, Jury
Instructions to Include Rules on Use of New Media, STARS & STRIPES (June 21,
2009), http://www.stripes.com/news/jury-instructions-to-include-rules-on-use-of-
new-media-1.92649 (noting that, following cases of juror misconduct, a military
judge “said he’s been working on specific language addressing networking
phenomena such as Twitter and Facebook that judges would use when instructing
troops who sit on court-martial panels”). For a comprehensive overview of the
various instructions across the country, see Robinson, supra note 203.
335. Of the jury instructions surveyed at the time this Article was written,
Multnomah County, Oregon, along with New York, appeared to have the most
comprehensive instructions addressing juror research and communications in the
Digital Age.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 459
any other form of communication. Do not discuss this case
with other jurors until you begin your deliberations at the
end of the case. Do not attempt to decide the case until you
begin your deliberations.
I will give you some form of this instruction every time
we take a break. I do that not to insult you or because I do
not think you are paying attention, but because, in my
experience, this is the hardest instruction for jurors to
follow. I know of no other situation in our culture where we
ask strangers to sit together watching and listening to
something, then go into a little room together and not talk
about the one thing they have in common[:] what they just
watched together.
There are at least two reasons for this rule. The first is
to help you keep an open mind. When you talk about things,
you start to make decisions about them and it is extremely
important that you not make any decisions about this case
until you have heard all the evidence and all the rules for
making your decisions, and you won’t have that until the
very end of the trial. The second reason for the rule is that
we want all of you working together on this decision when
you deliberate. If you have conversations in groups of two or
three during the trial, you won’t remember to repeat all of
your thoughts and observations for the rest of your fellow
jurors when you deliberate at the end of the trial.
Ignore any attempted improper communication. If any
person tries to talk to you about this case, tell that person
that you cannot discuss the case because you are a juror. If
that person persists, simply walk away and report the
incident to my staff.
Do not make any independent personal investigations
into any facts or locations connected with this case. Do not
look up any information from any source, including the
Internet. Do not communicate any private or special
knowledge about any of the facts of this case to your fellow
jurors. Do not read or listen to any news reports about this
case or about anyone involved in this case.
In our daily lives we may be used to looking for
information on-line and to “Google” something as a matter
of routine. Also, in a trial it can be very tempting for jurors
to do their own research to make sure they are making the
correct decision. You must resist that temptation for our
460 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
system of justice to work as it should. I specifically instruct
that you must decide the case only on the evidence received
here in court. If you communicate with anyone about the
case or do outside research during the trial it could cause us
to have to start the trial over with new jurors and you could
be held in contempt of court.336
b. Judicial Conference Committee
Before Trial
You, as jurors, must decide this case based solely on
the evidence presented here within the four walls of this
courtroom. This means that during the trial you must not
conduct any independent research about this case, the
matters in the case, and the individuals or corporations
involved in the case. In other words, you should not consult
dictionaries or reference materials, search the internet,
websites, blogs, or use any other electronic tools to obtain
information about this case or to help you decide the case.
Please do not try to find out information from any source
outside the confines of this courtroom.
Until you retire to deliberate, you may not discuss this
case with anyone, even your fellow jurors. After you retire
to deliberate, you may begin discussing the case with your
fellow jurors, but you cannot discuss the case with anyone
else until you have returned a verdict and the case is at an
end. I hope that for all of you this case is interesting and
noteworthy. I know that many of you use cell phones,
Blackberries, the internet and other tools of technology. You
also must not talk to anyone about this case or use these
tools to communicate electronically with anyone about the
case. This includes your family and friends. You may not
communicate with anyone about the case on your cell
phone, through e-mail, Blackberry, iPhone, text messaging,
or on Twitter, through any blog or website, through any
internet chat room, or by way of any other social networking
websites, including Facebook, My Space, LinkedIn, and
YouTube.
336. Jury Instructions, MULTNOMAH COUNTY, OR. (2009), available at
http://bit.ly/cb3y3a [hereinafter Multnomah County Jury Instructions].
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 461
At the Close of the Case
During your deliberations, you must not communicate
with or provide any information to anyone by any means
about this case. You may not use any electronic device or
media, such as a telephone, cell phone, smart phone,
iPhone, Blackberry or computer; the internet, any internet
service, or any text or instant messaging service; or any
internet chat room, blog, or website such as Facebook, My
Space, LinkedIn, YouTube or Twitter, to communicate to
anyone any information about this case or to conduct any
research about this case until I accept your verdict.337
c. Analysis
Both instructions avoid overly complex language and
appear to be drafted with the layperson in mind. For example,
they do not use technical terms or legal homonyms.338 A juror
would not need any legal training to understand these
instructions. In addition, each instruction specifically
references the prohibition against using both old and new
forms of communication to discuss the case.
Also, each instruction offers specific examples of
inappropriate conduct. Surprisingly, many jurors are still
337. JUDICIAL CONFERENCE COMM. ON COURT ADMIN. & CASE MGMT.,
PROPOSED MODEL JURY INSTRUCTIONS: THE USE OF ELECTRONIC TECHNOLOGY TO
CONDUCT RESEARCH ON OR COMMUNICATE ABOUT A CASE (2009) [hereinafter
JUDICIAL CONFERENCE COMM. INSTRUCTIONS], available at http://
www.uscourts.gov/uscourts/News/2010/docs/DIR10-018-Attachment.pdf. These
instructions have been endorsed by the Third Circuit Court of Appeals. United
States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011) (“We enthusiastically endorse
these instructions and strongly encourage district courts to routinely incorporate
them or similar language into their own instructions.”).
338. See Peter Tiersma, The Rocky Road to Legal Reform: Improving the
Language of Jury Instructions, 66 BROOK. L. REV. 1081, 1101–02 (2001) (“One of
the most obvious problems with jury instructions, or any other legal language that
is meant to be understood by the general public, is technical vocabulary. Some
legal terms are completely unknown in ordinary language, like quash or expunge
or res gestae. Others, which I have elsewhere called legal homonyms, are ordinary
words but have a specific legal meaning. Examples include brief, burglary,
mayhem, complaint, notice, aggravation, and many others. Legal homonyms are
potentially dangerous because a layperson may think that he knows what they
mean, whereas the terms may mean something quite different in the law.”)
(footnote omitted).
462 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
unsure of what activities run afoul of court rules.339 Examples
help connect the instructions to everyday juror behavior. Some
judges even go beyond the standard instructions and take it
upon themselves to demonstrate how seemingly innocent
online communications can jeopardize a trial.340 This is
important because jurors need to understand that routine
practices such as “Googling” individuals or discussing their
lives on social media websites, which they have grown
accustomed to and reliant on, have to be modified during jury
duty.
Of the two instructions, the Multnomah County
instructions are superior to those of the Judicial Conference
Committee. First, while both tell jurors not to research the case
or discuss it until deliberations, the Multnomah County
instructions explain, at least partially, why this rule is
necessary. Jurors in the Digital Age, more so than in the past,
need this explanation. Telling jurors why they should not
engage in misconduct, even if only in broad terms, is important
because it increases the likelihood that jurors will “buy in” and
follow the instructions.341 While the Multnomah County
instructions do a good job explaining why improper
communications are deleterious, they do not go far enough with
respect to research.342 Some states, such as Wisconsin, inform
jurors that relying on outside information or conducting
research “is unfair because the parties would not have the
opportunity to refute, explain, or correct it.”343
339. Many jurors who are discovered conducting research claim that they did
not know that they were doing anything wrong. In one Florida case, after the
judge declared a mistrial because a juror went to Wikipedia to look up the terms
“sexual assault” and “rape trauma syndrome,” the juror said, “I didn’t read about
the case in the newspaper or watch anything on TV. . . . To me, I was just looking
up a phrase.” Susannah Bryan, Davie Police Officer Convicted of Rape to Get New
Trial, PALM BEACH POST (Dec. 16, 2010), http://www.palmbeachpost.com/news/
crime/davie-police-officer-convicted-of-rape-to-get-1126441.html; see also
Zemlicka, supra note 221 (“But the situation served as a cautionary tale as to how
even seemingly harmless online banter can potentially influence jurors and their
verdict.”).
340. See Artigliere et al., supra note 38, at 14 (“Some judges are already
enhancing the standard instructions on their own.”).
341. See supra notes 298–304 and accompanying text.
342. See Multnomah County Jury Instructions, supra note 336.
343. Social Networking, Jurors and Jury Instructions, WIS. LAW. (Feb. 2011),
http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/
CM/ContentDisplay.cfm&contentid=100316 (quoting Wisconsin Jury
Instructions).
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 463
Also, the Multnomah County instructions, unlike those of
the Judicial Conference Committee, define terms like
“discussion” and how such terms are interpreted in the Digital
Age. For example, the Multnomah County instructions explain
to jurors that “discussion” includes “emailing, text messaging,
tweeting, blogging or any other form of communication.”344
This is important because many jurors think that “discussion”
only concerns face-to-face conversations.345
As for repetition, the Multnomah County instructions
inform jurors that the judge “will give you some form of this
instruction every time we take a break.”346 The Multnomah
County instructions even address the conscientious juror who
thinks that by knowing more she will be able to better fulfill
her duties.347 The Multnomah County instructions make it
clear to this type of juror that “it can be very tempting for
jurors to do their own research to make sure they are making
the correct decision. You must resist that temptation for our
system of justice to work as it should.”348
Finally, the Multnomah County instructions inform the
juror that she might be held in contempt of court for violating
the instructions. Although penalties should be a last resort to
correct inappropriate behavior, they sometimes are
necessary.349 Thus, courts should warn jurors that they may be
penalized for misconduct. One Jury Survey respondent noted,
“When a juror can sit in the privacy of their [sic] own home and
find out info about the case they [sic] really need strong
discouragement.”350
The one superior aspect of the Judicial Conference
Committee instructions is that they directly address the issue
of jurors researching “individuals,” not just the facts or
344. Multnomah County Jury Instructions, supra note 336.
345. See Hannaford-Agor, supra note 60, at 45. According to Lake County
Common Pleas Court Judge Vincent Culotta: “The definition of talk has changed.
Talk now includes blogging, [posting] on [your] Facebook account, text messaging,
e-mailing.” Lammers, supra note 307 (second alteration in original) (quoting
Judge Culotta).
346. Multnomah County Jury Instructions, supra note 336.
347. According to one Jury Survey respondent, “Jurors want to do the right
thing—that is a double-edged sword. They think the more info they have the
better job they will do.” Jury Survey, supra note 36.
348. Multnomah County Jury Instructions, supra note 336.
349. See Pamela MacLean, Jurors Gone Wild, CAL. LAW. (Apr. 2011),
http://www.callawyer.com/story.cfm?eid=914907&evid=1.
350. Jury Survey, supra note 36.
464 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
circumstances surrounding the case. For example, these
instructions tell jurors not to “conduct any independent
research about this case, the matters in the case, and the
individuals or corporations involved in the case.”351 As
illustrated in Russo v. Takata, jurors like to know the
backgrounds of the parties in a particular case.352 Thus, jury
instructions should address this issue.
With respect to the negative features of both instructions,
they lack the self-policing section advocated by some legal
commentators.353 This additional safeguard is important in
light of the secrecy and deference normally given to jury
deliberations.354 Without this requirement, it is difficult to
ensure that the instructions will be followed and that juror
misconduct, if it occurs, will be discovered.355 Also, neither
instruction specifically informs jurors that disobeying court
rules violates the juror’s oath. This latter point was significant
for at least one Jury Survey respondent.356
351. JUDICIAL CONFERENCE COMM. INSTRUCTIONS, supra note 337.
352. See supra notes 103–10 and accompanying text.
353. Judge Dennis M. Sweeney (Retired), Worlds Collide: The Digital Native
Enters the Jury Box, 1 REYNOLDS CTS. & MEDIA L.J. 121, 141 (2011) (“If you
become aware that any other juror has violated this instruction, please also let me
know by a note.”); see also Brickman et al., supra note 2 at 298. Several states also
impose a duty on jurors to report misconduct by fellow jurors. A Tennessee jury
instruction reads as follows: “Any juror who receives any information about this
case other than that presented at trial must notify the court immediately.”
Robinson, supra note 203, at 389 (2011) (quoting TENN. JUDICIAL CONFERENCE,
COMM. ON PATTERN JURY INSTRUCTIONS (CIVIL), TENN. PATTERN JURY
INSTRUCTIONS (2010)). “[T]he only way to ensure that deliberations are not
tainted by information that shouldn’t be brought into the jury room is to ‘get
jurors to police themselves.’ ” Porter, supra note 100, at 14 (quoting trial
consultant Amy Singer).
354. See Zemlicka, supra note 221 (“Under [Judge] DiMotto’s instructions, a
fellow juror would be responsible for reporting misconduct to the court.”). See
generally Alison Markovitz, Note, Jury Secrecy During Deliberations, 110 YALE
L.J. 1493 (2001).
355. Hirsch, supra note 21 (“Unless a juror informs the court that another
juror has conducted internet research, or . . . the material is discovered, [juror
research] is impossible to police.”) (quoting barrister Eleanor Laws); see, e.g.,
Altman v. Bobcat Co., 349 F. App’x 758, 760–61 (3d Cir. 2009).
356. Jury Survey, supra note 36.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 465
3. Model Instructions
a. Introduction to Model Instructions
The model instructions created in this Article are an
amalgamation of jury instructions from across the country.357
They were created because no single jurisdiction had
instructions that addressed all of the concerns raised by this
Article. Hopefully, these instructions will serve as a model for
jurisdictions that have yet to update their instructions or who
feel that their updates were insufficient. In addition, these
model instructions can be useful to practitioners who are
concerned with jurors conducting improper research and
communications.358 The instructions assume that the
jurisdiction does not allow pre-deliberation discussions between
jurors. If that is not the case, then these instructions would
have to be slightly modified by removing or altering the section
on pre-deliberation discussions.
b. Text of Model Instructions
Introduction: Serving on a jury is an important and
serious responsibility. Part of that responsibility is to decide
the facts of this case using only the evidence that the parties
will present in this courtroom. As I will explain further in a
moment, this means that I must ask you to do something that
may seem strange to you: to not discuss this case or do any
research on this case. I will also explain to you why this rule is
necessary and what to do if you encounter any problems with
it.
Communications: During this trial, do not contact
anyone associated with this case. If a question arises, direct it
to my attention or the attention of my staff. Also, do not discuss
this case during the trial with anyone, including any of the
attorneys, parties, witnesses, your friends, or members of your
family. This includes, but is not limited to, discussing your
357. These instructions also benefitted from the useful suggestions of Eric P.
Robinson, Deputy Director of the Donald W. Reynolds Center for Courts and the
Media at the University of Nevada at Reno.
358. The defense team representing Barry Bonds in his 2011 perjury trial used
a modified version of these instructions. Howard Mintz, Jurors Must Lay Off
Twitter, Facebook, iPhones and All Else for Barry Bonds Trial, OAKLAND TRIB.,
Mar. 5, 2011.
466 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
experience as a juror on this case, the evidence, the lawyers,
the parties, the court, your deliberations, your reactions to
testimony, exhibits, or any aspect of the case or your courtroom
experience. “No discussion” extends to all forms of
communication, whether in person, in writing, or through
electronic devices or media such as: email, Facebook, MySpace,
Twitter, instant messaging, Blackberry messaging, iPads,
iPhones, iTouches, Google, Yahoo!, or any other Internet search
engine or form of electronic communication for any purpose
whatsoever, if it relates to this case.
After you retire to deliberate, you may begin to discuss the
case with your fellow jurors and only your fellow jurors.
I will give you some form of this instruction every time we
take a break. I do that not to insult you or because I don’t think
that you are paying attention. I do it because, in my
experience, this is the hardest instruction for jurors to follow. I
know of no other situation in our culture where we ask
strangers to sit together watching and listening to something,
then go into a little room together and not talk about the one
thing they have in common, that which they just watched
together. There are at least three reasons for this rule.
The first is to help you keep an open mind. When you talk
about things, you start to make decisions about them, and it is
extremely important that you not make any decisions about
this case until you have heard all the evidence and all the rules
for making your decisions, and you will not have heard that
until the very end of the trial. The second reason is that, by
having conversations in groups of two or three during the trial,
you will not remember to repeat all of your thoughts and
observations to the rest of your fellow jurors when you
deliberate at the end of the trial. The third, and most
important, reason is that by discussing the case before
deliberations you increase the likelihood that you will either be
influenced by an outside third party or that you will reveal
information about the case to a third party. If any person tries
to talk to you about this case, tell that person you cannot
discuss the case because you are a juror. If that person persists,
simply walk away and report the incident to me or my staff.
Research: Do not perform any research or make any
independent personal investigations into any facts, individuals,
or locations connected with this case. Do not look up or consult
any dictionaries or reference materials. Do not search the
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 467
Internet, websites, or blogs. Do not use any of these or any
other electronic tools or other sources to obtain information
about any facts, individuals, or locations connected with this
case. Do not communicate any private or special knowledge
about any facts, individuals, or locations connected with this
case to your fellow jurors. Do not read or listen to any news
reports about this case. The law prohibits a juror from
receiving evidence not properly admitted at trial. If you have a
question or need additional information, contact me or my
staff. I, along with the attorneys, will review every request. If
the information requested is appropriate for you to receive, it
will be released in court.
In our daily lives, we may be used to looking for
information online and we may “Google” things as a matter of
routine. Also, in a trial it can be very tempting for jurors to do
their own research to make sure they are making the correct
decision. However, the moment you try to gather information
about this case or the participants is the moment you
contaminate the process and violate your oath as a juror.
Looking for outside information is unfair because the parties do
not have the opportunity to refute, explain, or correct what you
discovered or relayed. The trial process works through each
side knowing exactly what evidence is being considered by you
and what law you are applying to the facts you find. You must
resist the temptation to seek outside information for our
system of justice to work as it should. Once the trial ends and
you are dismissed as jurors, you may research and discuss the
case as much as you wish. You may also contact anyone
associated with this case. [Questions by the judge to the jury:
Are there any of you who cannot or will not abide by these
rules concerning communication or research with others in any
way during this trial? Are there any of you who do not
understand these instructions?]
Ramifications: If you communicate with anyone about
the case or do outside research during the trial, it could lead to
a mistrial, which is a tremendous expense and inconvenience to
the parties, the court, and, ultimately, you as taxpayers.
Furthermore, you could be held in contempt of court and
subject to punishment such as paying the costs associated with
having a new trial. If you find that one of your fellow jurors has
conducted improper communications or research or if you
conduct improper communications or research, you have a duty
468 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
to report it to me or my staff so that we can protect the
integrity of this trial.
CONCLUSION
The Digital Age, with its advancements in technology, has
made it easier for jurors to violate courts’ prohibitions against
juror research and communications. This Article has suggested
four possible solutions to combating this problem. The first two,
increased penalties and greater monitoring of juror activity,
take a somewhat paternalistic approach to the issue by
treating jurors like children who need to be watched and
punished when they fail to follow the rules. This course of
action, while possibly beneficial in the short-term, may prove
ineffective or harmful in the long-term. This is because these
solutions only address the symptoms of juror misconduct, not
its cause. Thus, courts will always be chasing the next
technological advancement that facilitates juror research or
communications. Second, and more importantly, these two
proposals will discourage citizens from participating in jury
service.
In the alternative, the courts could take a more holistic
view of the problem. Thus, rather than solely blame the jurors,
courts could examine the trial process as a whole and attempt
to eliminate the reasons for juror misconduct. This would
require the courts to reconsider the type of information made
available to jurors. As discussed earlier, many instances of
juror misconduct can be traced to a juror’s desire for more
information. Allowing juror questions will help curb this desire.
This solution provides jurors with additional information while
not violating the Rules of Evidence or the Constitution. It also
allows courts to maintain control of what information jurors
see and hear.
Besides permitting questions, courts also need to improve
jury instructions. Today’s instructions need to inform jurors
that routine practices such as “Googling” individuals or
discussing their own lives on social media websites, which they
have grown accustomed to and reliant on, is incompatible with
jury service. In providing these instructions, courts need to
ensure that jurors know why such activity is prohibited. While
some jurisdictions have updated their jury instructions to
reflect the changes brought by the Digital Age, others have not.
2012] JUROR MISCONDUCT IN THE DIGITAL AGE 469
In order to facilitate and encourage jurisdictions to re-examine
and improve their instructions to jurors, this Article has
created model instructions that will hopefully serve as a
template for others to use.
The jury, throughout its approximately 400-year history in
America, has witnessed many changes and upheavals in the
legal system. Through each one, the jury has adapted and
survived. Thus, it is highly likely that the jury will weather the
storm of the Digital Age. The question becomes: How will it
evolve? This author hopes that any changes to the jury go
towards empowerment, allowing jurors to function as equal
partners in the courtroom.
APPENDIX (JURY SURVEY QUESTIONS)
1. Do you believe that jurors who access the Internet
during trial to find out information about the pending case is a
problem? If it is not a problem, please state why you feel this
way.
2. Do you or the court in which you sit359 have a policy or
rule on jurors accessing the Internet while on jury duty? If you
answer “No,” go to question #6.
3. Can you briefly describe this policy or rule?
4. How long has the rule or policy been in place?
5. Do you think the policy or rule is effective? If not, what
changes should be made?
6. To date, have you had instances of jurors improperly
accessing the Internet while on jury duty? If “Yes,” what action
if any did you take as a result of the juror(s) accessing the
Internet?
7. Of the following suggestions which one do you think is
most effective at preventing jurors from accessing the Internet?
Please state why you believe this one is most effective.
(a) Instruct jurors in the initial summons that they must
refrain from accessing any information about the trial from the
Internet.
(b) Use voir dire questions that actually address Internet
use by jurors.
359. The Jury Survey sent to federal prosecutors and defenders was very
similar to the one in the Appendix. Slight changes were made in the language (for
example, “which you sit” was changed to “where you practice”).
470 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 83
(c) Revise jury instructions with specific language about
using the Internet during trial. Repeat these instructions
throughout the trial.
(d) Have jurors sign declarations stating that they will not
use the Internet to research the trial.
(e) Educate jurors about the importance of jurors deciding
cases on the facts presented.
(f) Make it clear that using the Internet to access
information about the trial is a violation of the court’s
instructions.
(g) Allow questions by jurors.
(h) Prohibit jurors from accessing items like cell phones,
laptops etc.
(i) Other (please describe).
8. Do you have any additional views about jurors and the
Internet not covered by this survey that you would like to
discuss?
9. Do you think it is appropriate for opposing parties to
conduct Internet research on jurors? If yes, do you believe that
such research should be turned over as part of the Discovery
process?
10. Do you think it is appropriate for jurors to
communicate with one another online or otherwise prior to
deliberations?
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